Law Compilation Constitutional Law I Michael Vernon Guerrero Mendiola 2011 Collection shared under Creative Commons AttributionNonCommercial-ShareAlike 3.0 Philippines license.
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Table of Contents Treaty of Paris of 1898 …......... 1 Treaty Between Spain and the United States for the Cession of Outlying Islands of the Philippines …......... 5 Convention regarding the Boundary between the Philippine Archipelago and the State of North Borneo …......... 6 Republic Act 3046 …......... 15 Republic Act 5446 …......... 20 Republic Act 5446 …......... 25 Presidential Decree 1596 …......... 29 Presidential Decree 1599 …......... 31 United Nations Convention on the Law of the Sea of 10 December 1982 …......... 33 ends at 185
This collection contains nine (9) legal documents, referred in the third chapter of the course syllabus, compiled by Atty. Michael Vernon M. Guerrero during the First Semester, school year 2011-2012 as Professor for Constitutional Law I at the Arellano University School of Law (AUSL). Compiled as PDF, July 2011. Berne Guerrero entered AUSL in June 2002 and eventually graduated from AUSL in 2006. He passed the Philippine bar examinations immediately after (April 2007). He started teaching law (Technology and the Law) at AUSL in 2008 and began to teach Constitutional Law I in 2011.
www.berneguerrero.com
Notes in Constitutional Law I (Atty. Berne Guerrero) Annex A Treaty of Paris of 1898 For a copy of the original text, see http://avalon.law.yale.edu/19th_century/sp1898.asp Source: A Treaty of Peace Between the United States and Spain, U.S. Congress, 55th Cong., 3d sess., Senate Doc. No. 62, Part 1 (Washington: Government Printing Office, 1899), 5-11.
The United States of America and Her Majesty the Queen Regent of Spain, in the name of her august son Don Alfonso XIII, desiring to end the state of war now existing between the two countries, have for that purpose appointed as plenipotentiaries: The President of the United States, William R. Day, Cushman K. Davis, William P. Frye, George Gray, and Whitelaw Reid, citizens of the United States; And Her Majesty the Queen Regent of Spain, Don Eugenio Montero Rios, president of the senate, Don Buenaventura de Abarzuza, senator of the Kingdom and exminister of the Crown; Don Jose de Garnica, deputy of the Cortes and associate justice of the supreme court; Don Wenceslao Ramirez de Villa-Urrutia, envoy extraordinary and minister plenipotentiary at Brussels, and Don Rafael Cerero, general of division; Who, having assembled in Paris, and having exchanged their full powers, which were found to be in due and proper form, have, after discussion of the matters before them, agreed upon the following articles: Article I. Spain relinquishes all claim of sovereignty over and title to Cuba.And as the island is, upon its evacuation by Spain, to be occupied by the United States, the United States will, so long as such occupation shall last, assume and discharge the obligations that may under international law result from the fact of its occupation, for the protection of life and property. Article II. Spain cedes to the United States the island of Porto Rico and other islands now under Spanish sovereignty in the West Indies, and the island of Guam in the Marianas or Ladrones. Article III. Spain cedes to the United States the archipelago known as the Philippine Islands, and comprehending the islands lying within the following line: A line running from west to east along or near the twentieth parallel of north latitude, and through the middle of the navigable channel of Bachi, from the one hundred and eighteenth (118th) to the one hundred and twenty-seventh (127th) degree meridian of longitude east of Greenwich, thence along the one hundred and twenty seventh (127th) degree meridian of longitude east of Greenwich to the parallel of four degrees and forty five minutes (4 [degree symbol] 45']) north latitude, thence along the parallel of four degrees and forty five minutes (4 [degree symbol] 45') north latitude to its intersection with the meridian of longitude one hundred and nineteen degrees and thirty five minutes (119 [degree symbol] 35') east of Greenwich, thence along the meridian of longitude one hundred and nineteen degrees and thirty five minutes (119 [degree symbol] 35') east of Greenwich to the parallel of latitude seven degrees and forty minutes (7 [degree symbol] 40') north, thence along the parallel of latitude of seven degrees and forty minutes (7 [degree symbol] 40') north to its intersection with the one hundred and sixteenth (116th) degree meridian of longitude east of Greenwich, thence by a direct line to the intersection of the tenth (10th) degree parallel of north latitude with the one hundred and eighteenth (118th) degree meridian of longitude east of Greenwich, and thence along the one hundred and eighteenth (118th) degree meridian of longitude east of Greenwich to the point of beginning.The United States will pay to Spain the sum of twenty million dollars ($20,000,000) within three months after the exchange of the ratifications of the present (Draft) First Edition, 2011 ( Annex III - 1 )
Notes in Constitutional Law I (Atty. Berne Guerrero) treaty. Article IV. The United States will, for the term of ten years from the date of the exchange of the ratifications of the present treaty, admit Spanish ships and merchandise to the ports of the Philippine Islands on the same terms as ships and merchandise of the United States. Article V. The United States will, upon the signature of the present treaty, send back to Spain, at its own cost, the Spanish soldiers taken as prisoners of war on the capture of Manila by the American forces. The arms of the soldiers in question shall be restored to them. Spain will, upon the exchange of the ratifications of the present treaty, proceed to evacuate the Philippines, as well as the island of Guam, on terms similar to those agreed upon by the Commissioners appointed to arrange for the evacuation of Porto Rico and other islands in the West Indies, under the Protocol of August 12, 1898, which is to continue in force till its provisions are completely executed. The time within which the evacuation of the Philippine Islands and Guam shall be completed shall be fixed by the two Governments. Stands of colors, uncaptured war vessels, small arms, guns of all calibres, with their carriages and accessories, powder, ammunition, livestock, and materials and supplies of all kinds, belonging to the land and naval forces of Spain in the Philippines and Guam, remain the property of Spain. Pieces of heavy ordnance, exclusive of field artillery, in the fortifications and coast defences, shall remain in their emplacements for the term of six months, to be reckoned from the exchange of ratifications of the treaty; and the United States may, in the meantime, purchase such material from Spain, if a satisfactory agreement between the two Governments on the subject shall be reached. Article VI. Spain will, upon the signature of the present treaty, release all prisoners of war, and all persons detained or imprisoned for political offences, in connection with the insurrections in Cuba and the Philippines and the war with the United States. Reciprocally, the United States will release all persons made prisoners of war by the American forces, and will undertake to obtain the release of all Spanish prisoners in the hands of the insurgents in Cuba and the Philippines. The Government of the United States will at its own cost return to Spain and the Government of Spain will at its own cost return to the United States, Cuba, Porto Rico, and the Philippines, according to the situation of their respective homes, prisoners released or caused to be released by them, respectively, under this article. Article VII. The United States and Spain mutually relinquish all claims for indemnity, national and individual, of every kind, of either Government, or of its citizens or subjects, against the other Government, that may have arisen since the beginning of the late insurrection in Cuba and prior to the exchange of ratifications of the present treaty, including all claims for indemnity for the cost of the war. The United States will adjudicate and settle the claims of its citizens against Spain relinquished in this article. Article VIII. In conformity with the provisions of Articles I, II, and III of this treaty, Spain relinquishes in Cuba, and cedes in Porto Rico and other islands in the West Indies, in the island of Guam, and in the Philippine Archipelago, all the buildings, wharves, barracks, forts, structures, public highways and other immovable property which, in conformity with law, belong to the public domain, and as such belong to the Crown of Spain.
(Draft) First Edition, 2011 ( Annex III - 2 )
Notes in Constitutional Law I (Atty. Berne Guerrero) And it is hereby declared that the relinquishment or cession, as the case may be, to which the preceding paragraph refers, can not in any respect impair the property or rights which by law belong to the peaceful possession of property of all kinds, of provinces, municipalities, public or private establishments, ecclesiastical or civic bodies, or any other associations having legal capacity to acquire and possess property in the aforesaid territories renounced or ceded, or of private individuals, of whatsoever nationality such individuals may be. The aforesaid relinquishment or cession, as the case may be, includes all documents exclusively referring to the sovereignty relinquished or ceded that may exist in the archives of the Peninsula. Where any document in such archives only in part relates to said sovereignty, a copy of such part will be furnished whenever it shall be requested. Like rules shall be reciprocally observed in favor of Spain in respect of documents in the archives of the islands above referred to. In the aforesaid relinquishment or cession, as the case may be, are also included such rights as the Crown of Spain and its authorities possess in respect of the official archives and records, executive as well as judicial, in the islands above referred to, which relate to said islands or the rights and property of their inhabitants. Such archives and records shall be carefully preserved, and private persons shall without distinction have the right to require, in accordance with law, authenticated copies of the contracts, wills and other instruments forming part of notorial protocols or files, or which may be contained in the executive or judicial archives, be the latter in Spain or in the islands aforesaid. Article IX. Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the present treaty relinquishes or cedes her sovereignty, may remain in such territory or may remove therefrom, retaining in either event all their rights of property, including the right to sell or dispose of such property or of its proceeds; and they shall also have the right to carry on their industry, commerce and professions, being subject in respect thereof to such laws as are applicable to other foreigners. In case they remain in the territory they may preserve their allegiance to the Crown of Spain by making, before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration of their decision to preserve such allegiance; in default of which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they may reside. The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress. Article X. The inhabitants of the territories over which Spain relinquishes or cedes her sovereignty shall be secured in the free exercise of their religion. Article XI. The Spaniards residing in the territories over which Spain by this treaty cedes or relinquishes her sovereignty shall be subject in matters civil as well as criminal to the jurisdiction of the courts of the country wherein they reside, pursuant to the ordinary laws governing the same; and they shall have the right to appear before such courts, and to pursue the same course as citizens of the country to which the courts belong. Article XII. Judicial proceedings pending at the time of the exchange of ratifications of this treaty in the territories over which Spain relinquishes or cedes her sovereignty shall be determined according to the following rules: 1. Judgments rendered either in civil suits between private individuals, or in criminal matters, before the date mentioned, and with respect to which there is no recourse or right of review under the Spanish law, shall be deemed to be final, and shall be executed in due form by competent authority in the territory within which such judgments should be carried out. 2. Civil suits between private individuals which may on the date mentioned be undetermined shall be prosecuted to judgment before the court in which they may then be pending or in the court that may be substituted therefor.
(Draft) First Edition, 2011 ( Annex III - 3 )
Notes in Constitutional Law I (Atty. Berne Guerrero) 3. Criminal actions pending on the date mentioned before the Supreme Court of Spain against citizens of the territory which by this treaty ceases to be Spanish shall continue under its jurisdiction until final judgment; but, such judgment having been rendered, the execution thereof shall be committed to the competent authority of the place in which the case arose. Article XIII. The rights of property secured by copyrights and patents acquired by Spaniards in the Island of Cuba and in Porto Rico, the Philippines and other ceded territories, at the time of the exchange of the ratifications of this treaty, shall continue to be respected. Spanish scientific, literary and artistic works, not subversive of public order in the territories in question, shall continue to be admitted free of duty into such territories, for the period of ten years, to be reckoned from the date of the exchange of the ratifications of this treaty. Article XIV. Spain will have the power to establish consular officers in the ports and places of the territories, the sovereignty over which has been either relinquished or ceded by the present treaty. Article XV. The Government of each country will, for the term of ten years, accord to the merchant vessels of the other country the same treatment in respect of all port charges, including entrance and clearance dues, light dues, and tonnage duties, as it accords to its own merchant vessels, not engaged in the coastwise trade. Article XVI. It is understood that any obligations assumed in this treaty by the United States with respect to Cuba are limited to the time of its occupancy thereof; but it will upon termination of such occupancy, advise any Government established in the island to assume the same obligations. Article XVII. The present treaty shall be ratified by the President of the United States, by and with the advice and consent of the Senate thereof, and by Her Majesty the Queen Regent of Spain; and the ratifications shall be exchanged at Washington within six months from the date hereof, or earlier if possible. In faith whereof, we, the respective Plenipotentiaries, have signed this treaty and have hereunto affixed our seals. Done in duplicate at Paris, the tenth day of December, in the year of Our Lord one thousand eight hundred and ninetyeight. [Seal] William R. Day [Seal] Cushman K. Davis [Seal] William P. Frye [Seal] Geo. Gray[Seal] Whitelaw Reid [Seal] Eugenio Montero Rios [Seal] B. de Abarzuza[Seal] J. de Garnica [Seal] W. R. de Villa Urrutia [Seal] Rafael Cerero
(Draft) First Edition, 2011 ( Annex III - 4 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Annex B Treaty Between Spain and the United States for the Cession of Outlying Islands of the Philippines For a copy of the original text, see http://law.upd.edu.ph/plj/images/files/PLJ%20volume%2060/PLJ%20Volume%2060%20supplemental%20issue%20012-%20Treaty%20between%20spain%20and%20the%20United%20States.pdf Concluded November 7, 1900; ratification advised by Senate January 22, 1901 .. ratified by the President January 30, 1901; ratifications exchanged March 23, 1901; proclaimed March 23, 1901. ARTICLE Relinquishment of islands to the United States The United States of America and Her Majesty the Queen Regent of Spain, in the name of Her August Son, Don Alfonso XIII, desiring to remove any ground of misunderstanding growing out of the interpretation of Article III of the Treaty of Peace concluded between them at Paris the tenth day of December, one thousand eight hundred and ninety eight, whereby Spain cedes to the United States the archipelago known as the Philippine Islands and comprehending the islands lying within certain described lines, and having resolved to conclude a Treaty to accomplish that end, have for that purpose appointed as their respective plenipotentiaries: The President of the United States, John Hay, Secretary of State of the United States; and Her Majesty the Queen Regent of Spain, the Duke de Arcos, Envoy Extraordinary and Minister Plenipotentiary of Spain to the United States; who, having met in the city of Washington and having exchanged their full powers, which were found to be in due and proper form, have agreed upon the following sole article: SOLE ARTICLE Spain relinquishes to the United States all title and claim of title; which she may have had at the time of the conclusion of the Treaty of Peace of Paris, to any and all islands belonging to the Philippine Archipelago, lying outside the lines described in Article III of that Treaty and particularly to the islands of Cagayan Sulu and Sibutu and their dependencies, and agrees that all such islands shall be comprehended in the cession of the Archipelago as fully as if they had been expressly included within those lines. The United States, in consideration of this relinquishment, will pay to Spain the sum of one hundred thousand dollars ($100,000) within six months after the exchange of the ratifications of the prescut treaty. The present Treaty shall be ratified by the President of the United States, by ·and with the advice and consent of the Senate thereof, and by Her Majesty the Queen Regent of Spain, after approval by the Cortes of the Kingdom, and the ratifications shall be exchanged at Washington as soon as possible. In faith whereof the respective Plenipotentiaries, have signed this Treaty and have hereunto affixed our seals. Done in duplicate at the city of Washington, the 7th day of November, in the year of Our Lord one thousand nine hundred. we, JOHN HAY (SEAL) ARCOS (SEAL)
(Draft) First Edition, 2011 ( Annex III - 5 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Annex C Convention regarding the Boundary between the Philippine Archi pelago and the State of North Borneo For a copy of the original text, see http://untreaty.un.org/unts/60001_120000/17/33/00033631.pdf
Convention regarding the Boundary between the Philippine Archi pelago and the State of North Borneo, signed at Washington, January 2, 1930, and Exchange of Notes relating thereto, Wash ington, January 2, 1930, and July 6, 1932. CONVENTION1 BETWEEN HIS MAJESTY IN RESPECT OF THE UNITED KINGDOM AND THE PRESIDENT OF THE UNITED STATES OF AMERICA REGARDING THE BOUNDARY BETWEEN THE PHILIPPINE ARCHIPELAGO AND THE STATE OF NORTH BORNEO. SIGNED AT WASHINGTON, JANUARY 2, 1930. His MAJESTY THE KING OF GREAT BRITAIN, IRELAND AND THE BRITISH DOMINIONS BEYOND THE SEAS, EMPEROR OF INDIA, and THE PRESIDENT OF THE UNITED STATES OF AMERICA, Being desirous of delimiting definitely the boundary between the Philippine Archipelago (the territory acquired by the United States of America by virtue of the Treaties of the 10th December, 1898, 2 and the 7th November, 1900,3 with Her Majesty the Queen Regent of Spain) and the State of North Borneo which is under British protection, Have resolved to conclude a Convention for that purpose and have appointed as their Plenipotentiaries : His MAJESTY THE KING OF GREAT BRITAIN, IRELAND AND THE BRITISH DOMINIONS BEYOND THE SEAS, EMPEROR OF INDIA : FOR GREAT BRITAIN AND NORTHERN IRELAND : The Right Honourable Sir Esme HOWARD, G.C.B., G.C.M.G., C.V.O., His Majesty's Ambassador Extraordinary and Plenipotentiary at Washington ; and THE PRESIDENT OF THE UNITED STATES OF AMERICA : Henry L. STIMSON, Secretary of State of the United States ; Who, having communicated to each other their respective full powers found in good and due form have agreed upon and concluded the following Articles : Article 1. It is hereby agreed and declared that the line separating the islands belonging to the Philippine Archipelago on the one hand and the islands belonging to the State of North Borneo which is under British protection on the other hand shall be and is hereby established as follows : From the point of intersection of the parallel of four degrees forty-five minutes (4° 45') north latitude and the meridian of longitude one hundred twenty degrees (120° 0') east of Greenwich (being a point on the boundary defined by the Treaty between the United States of America and Spain, signed at Paris, the 10th December, 1898), a line due south along the meridian of longitude one hundred twenty degrees (120° 0') east of Greenwich to its point of intersection with the parallel of four degrees twentythree minutes (4° 23') north latitude ; Thence due west along the parallel of four degrees twenty-three minutes (4° 23') north latitude to its intersection with the meridian of longitude one hundred nineteen degrees (119° 0') east of Greenwich ; 1 L'échange des ratifications a eu lieu à Washington, le 13 décembre 1932/ 2 DE MARTENS, Nouveau Recueil général de Traités, deuxième série, tome XXX11, page 74 3 DE MARTENS, Nouveau Recueil général de Traités, deuxième série, tome XXXII, page 82 (Draft) First Edition, 2011 ( Annex III - 6 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Thence due north along the meridian of longitude one hundred nineteen degrees (119° 0') east of Greenwich to its intersection with the parallel of four degrees forty-two minutes (4° 42') north latitude ; Thence in a straight line approximately 45° 54' true (N 45° 54' E) to the intersection of the parallel of five degrees sixteen minutes (5° 16') north latitude and the meridian of longitude one hundred nineteen degrees thirty-five minutes (119° 35') east of Greenwich ; Thence in a straight line approximately 314° 19' true (N 45° 41 ' W) to the intersection of the parallel of six degrees (6° o') north latitude and the meridian of longitude one hundred eighteen degrees fifty minutes (118° 50') east of Greenwich ; Thence due west along the parallel of six degrees (6° 0') north latitude to its intersection with the meridian of longitude one hundred eighteen degrees twenty minutes (118° 20') east of Greenwich ; Thence in a straight line approximately 307° 40' true (N 52° 20' W) passing between Little Bakkungaan Island and Great Bakkungaan Island to the intersection of the parallel of six degrees seventeen minutes (6° 17') north latitude and the meridian of longitude one hundred seventeen degrees fifty-eight minutes (117° 58') east of Greenwich ; Thence due north along the meridian of longitude one hundred seventeen degrees fifty-eight minutes (117° 58') east of Greenwich to its intersection with the parallel of six degrees fifty-two minutes (6° 52') north latitude ; Thence in a straight line approximately 315° 16' true (N 44° 44' W) to the intersection of the parallel of seven degrees twenty-four minutes forty-five seconds (7° 24' 45") north latitude with the meridian of longitude one hundred seventeen degrees twenty-five minutes thirty seconds (117° 25' 30") east of Greenwich ; Thence in a straight line approximately 300° 56' true (N 59° 4' W) through the Mangsee Channel between Mangsee Great Reef and Mangsee Islands to the intersection of the parallel of seven degrees forty minutes (7° 40') north latitude and the meridian of longitude, one hundred seventeen degrees (117° o') east of Greenwich, the latter point being on the boundary defined by the Treaty between the United States of America and Spain, signed at Paris, December 10, 1898. Article 2. The line described above has been indicated on Charts Nos. 4707 and 4720, published by the United States Coast and Geodetic Survey, corrected to the 24th July, 1929, portions of both charts so marked being attached to this treaty and made a part thereof. It is agreed that if more accurate surveying and mapping of North Borneo, the Philippine Islands, and intervening islands shall in the future show that the line described above does not pass between Little Bakkungaan and Great Bakkungaan Islands, substantially as indicated on Chart No. 4720, the boundary line shall be understood to be defined in that area as a line passing between Little Bakkungaan and Great Bakkungaan Islands as indicated on the chart, said portion of the line being a straight line approximately 307° 40' true drawn from a point on the parallel of 6° o' north latitude to a point on the meridian of longitude of 117° 58' east of Greenwich. It is likewise agreed that if more accurate surveying and mapping shall show that the line described above does not pass between the Mangsee Islands and Mangsee Great Reef as indicated on Chart No. 4720, the boundary shall be understood to be denned in that area as a straight line drawn from the intersection of the parallel of 7° 24' 45" north latitude and the meridian of longitude of 117° 25' 30" east of Greenwich, passing through Mangsee Channel as indicated on attached Chart No. 4720 to a point on the parallel of 7° 40' north latitude. Article 3. All islands to the north and east of the said line and all islands and rocks traversed by the said line, should there be any such, shall belong to the Philippine Archipelago and all islands to the south and west of the said line shall belong to the State of North Borneo. (Draft) First Edition, 2011 ( Annex III - 7 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
Article 4. The provisions of Article 19 of the Treaty 4 between the United States of America, the British Empire, France, Italy and Japan limiting naval armament, signed at Washington on the 6th February, 1922, shall, so long as that Treaty remains in force, apply in respect of all islands in the Turtle and Mangsee Groups which are or may be deemed to be comprised within the territories of the Philippine Archipelago on the one hand and of the State of North Borneo on the other hand in consequence of the establishment of the line fixed by the preceding articles of the present Convention. In the event of either High Contracting Party ceding, selling, leasing or transferring any of the islands in question to a third party provision shall be made for the continued application to such island of the aforementioned Article 19 of the Treaty between the United States of America, the British Empire, France, Italy and Japan limiting naval armament, signed at Washington on the 6th February, 1922, provided that Treaty is still in force at the time of such cession, sale, lease or transfer. Article 5. The present Convention shall be ratified by His Britannic Majesty and by the President of the United States of America, by and with the advice and consent of the Senate thereof, and shall come into force on the exchange of the acts of ratification which shall take place at Washington as soon as possible. In witness whereof the respective Plenipotentiaries have signed the same and have affixed thereto their respective seals. Done in duplicate at Washington the second day of January in the year of our Lord one thousand nine hundred and thirty. (Seal) Esme HOWARD. (Seal) Henry L. STIMSON. EXCHANGE OF NOTES I. SIR ESME HOWARD to MR. STIMSON. WASHINGTON, January 2, 1930. SIR, By the convention concluded between the President of the United States of America and His Britannic Majesty for the purpose of delimiting the boundary between the Philippine Archipelago on the one hand and the State of North Borneo which is under British protection on the other hand, the sovereignty over certain islands which have for many years past been administered by the British North Borneo Company has been definitely recognised as pertaining to the United States of America. These islands which formed the subject of the arrangement effected by an exchange of notes between His Majesty's Government and the United States Government on the 3rd and 10th July, 1907, are : (1) Sibaung, Boaan, Lihiman, Langaan, Great Bakkungaan, Taganak, and Baguan in the group of islands known as the Turtle Islands. (2) The Mangsee Islands. His Majesty's Government in the United Kingdom understand that the Government of the United States of America are prepared to conclude an arrangement ir. regard to these islands, supplementary to the above-mentioned convention, in the following terms : Firstly. — That the said company be left undisturbed in the administration of the islands in question unless or 4 Vol. XXV, page 201, de ce recueil. (Draft) First Edition, 2011 ( Annex III - 8 )
Notes in Constitutional Law I (Atty. Berne Guerrero) until the United States Government give notice to His Majesty's Government of their desire that the administration of the islands should be transferred to them. The transfer of administration shall be effected within one year after such notice is given on a day and in a manner to be mutually arranged. Secondly. — That when the administration of any island is transferred in accordance with the foregoing the said Company will deliver to the United States Government all records relating to administration prior to the date of transfer. Thirdly. — The United States of America shall not be responsible for the value of any buildings which have been or may be erected or other permanent improvements which have been or may be made in any island the administration of which is subject to transfer but any buildings or improvements erected or made by the administrative authorities prior to the transfer of administration may be removed provided the interests of the United States of America are not thereby injured. In the event, however, of the Island of Taganak being so transferred, the United States Government will give favourable consideration to the question of the compensation to be paid to the said company in respect of the capital expenditure incurred by the company in connection with the lighthouse situated on the island, and the United States Government will provide for the future maintenance of the lighthouse. Fourthly. — That such privilege of administration shall not carry with it territorial rights, such as those of making grants or concessions in the islands in question to extend beyond the temporary occupation of the company ; and any grant, concession, or licence made by the company shall cease upon the termination of the company's occupation. The United States Government, however, take note of the desire of His Majesty's Government that the following titles to land in certain of the islands which were in good faith granted by the Government of North Borneo prior to the arrangement of 1907, be allowed to stand on the terms on which they were issued by that Government : PARTICULARS. Titles
Date of Alienation
Period
Approximate Total Acreage Acres
Boaan Island — 26 native titles
June 1, 1907
In perpetuity
146
Lihiman Island — 7 native titles 1 provisional lease, 2416
June 1, 1907 June 1, 1907
In perpetuity 999 years
37 13 Total 50
June 1, 1907
In perpetuity
12
September 26, 1903
999 years
118
Langaan Island — 4 native titles Great Bakkungaan — 3 provisional leases
Fifthly. — It is agreed that the United States Government shall be exempt from responsibility in respect of acts done in or from any of the islands in question the administration of which has not been transferred to the United States. Sixthly. — The stipulations of the extradition treaties between the United States Government and His Majesty's Government shall be applicable within the limits provided for in the exchange of notes 5 which took place in Washington on the 1st to 23rd September, 1913, to the islands in question and the United States Government take note of the importance which, in view of the proximity of the islands to North Borneo, the said company 5 DE MARTENS, Nouveau Recueil général de Traités, troisième série, tome VIII, page 192 (Draft) First Edition, 2011 ( Annex III - 9 )
Notes in Constitutional Law I (Atty. Berne Guerrero) attach to the establishment and maintenance of an adequate police post thereon, in the event of the administration being transferred to the United States Government. Seventhly. — In the event of the cession, sale, lease or transfer of the islands in question to any third party, the United States Government undertake to use their good offices in commending to the favourable consideration of such third party the desires expressed by His Majesty's Government in the United Kingdom and the British North Borneo Company, as set out in the preceding articles of the present arrangement. I have the honour under instruction from His Majesty's Principal Secretary of State for Foreign Affairs to request you to be so good as to inform me whether the United States adhere to the terms of the arrangement above described and I shall be glad to receive an assurance from you at the time that this note will be considered by the United States Government as sufficient acceptance of the above arrangement on the part of His Majesty's Government in the United Kingdom. I have, etc. Esme HOWARD. II. MR. STIMSON TO SIR ESME HOWARD. DEPARTMENT OF STATE. WASHINGTON, January 2, 1930. EXCELLENCY, In your Excellency's note of to-day's date you stated that His Majesty's Government in the United Kingdom understands that the Government of the United States of America is prepared to conclude an arrangement in the following terms regarding certain islands off the coast of Borneo which have been administered by the British North Borneo Company in accordance with the arrangement effected by an exchange of notes between His Majesty's Government and the Government of the United States of America on the 3rd and 10th July, 1907 : Firstly. — That the said company be left undisturbed in the administration of the islands in question unless or until the United States Government give notice to His Majesty's Government of its desire that the administration of the islands should be transferred to it. The transfer of administration shall be effected within one year after such notice is given on a day and in a manner to be mutually arranged. Secondly. — That when the administration of any island is transferred in accordance with the foregoing the said Company will deliver to the United States Government all records relating to administration prior to the date of transfer. Thirdly. — The United States of America shall not be responsible for the value of any buildings which, have been or may be erected or other permanent improvements which have been or may be made in any island the administration of which is subject to transfer but any buildings or improvements erected or made by the administrative authorities prior to the transfer of administration may be removed provided the interests of the United States of America are not thereby injured. In the event, however, of the Island of Taganak being so transferred, the United States Government will give favourable consideration to the question of the compensation to be paid to the said company in respect of the capital expenditure incurred by the company in connection with the lighthouse situated on the island, and the United States Government will provide for the future maintenance of the lighthouse. Fourthly. — That such privilege of administration shall not carry with it territorial rights, such as those of making grants or concessions in the islands in question to extend beyond the temporary occupation of the company ; and any grant, concession, or licence made by the company shall cease upon the termination of the company's occupation. (Draft) First Edition, 2011 ( Annex III - 10 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
The United States Government, however, takes note of the desire of His Majesty's Government that the following titles to land in certain of the islands which were in good faith granted by the Government of North Borneo prior to the arrangement of 1907, be allowed to stand on the terms on which they were issued by that Government : PARTICULARS. Titles
Date of Alienation
Period
Approximate Total Acreage Acres
Boaan Island — 26 native titles
June 1, 1907
In perpetuity
146
Lihiman Island — 7 native titles 1 provisional lease, 2416
June 1, 1907 June 1, 1907
In perpetuity 999 years
37 13 Total 50
June 1, 1907
In perpetuity
12
September 26, 1903
999 years
118
Langaan Island — 4 native titles Great Bakkungaan — 3 provisional leases
Fifthly. — It is agreed that the United States Government shall be exempt from responsibility in respect of acts done in or from any of the islands in question the administration of which has not been transferred to the United States. Sixthly. — The stipulations of the extradition treaties between the United States Government and His Majesty's Government shall be applicable within the limits provided for in the exchange of notes which took place in Washington on the 1st to 23rd September, 1913, to the islands in question and the United States Government takes note of the importance which, in view of the proximity of the islands to North Borneo, the said company attaches to the establishment and maintenance of an adequate police post, thereon, in the event of the administration being transferred to the United States Government. Seventhly. — In the event of the cession, sale, lease or transfer of the islands in question to any third party, the United States Government undertakes to use its good offices in commending to the favourable consideration of such third party the desires expressed by His Majesty's Government in the United Kingdom and the British North Borneo Company, as set out in the preceding articles of the present arrangement. In reply to the enquiry made on behalf of your Excellency's Government in the last paragraph of your note of to-day's date, I take pleasure in informing you that the Government of the United States of America adheres to the terms of the arrangement above described, and in assuring you that your note under acknowledgment is considered by the Government of the United States of America as sufficient acceptance of the arrangement on the part of His Majesty's Government in the United Kingdom. Accept, etc. Henry L. STIMSON. III. SIR K. LINDSAV TO MK. STIMSON. WASHINGTON, July 6, 1932.
(Draft) First Edition, 2011 ( Annex III - 11 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Sir, In the notes exchanged between the United States Government and His Majesty's Government in the United Kingdom on the 2nd January, 1930, constituting an arrangement regarding certain islands off the coast of Borneo which have been administered by the British North Borneo Company in accordance with the arrangement effected by an exchange of notes between His Majesty's Government and the Government of the United States of America on the 3rd July and the 10th July, 1907, the United States Government took note of the desire of His Majesty's Government that certain titles to land in certain of the islands which were in good faith granted by the Government of North Borneo prior to the arrangement of 1907 be allowed to stand on the terms on which they were issued by that Government. 2. His Majesty's Government regret that the following title was inadvertently omitted from those included in the above arrangement : Lihiman Island Provisional Lease No. 2417
Date of Alienation I. VI. 1907
Period 999 years
Area 13 acres 0 roods 24 perches
3. I have the honour, under instructions from His Majesty's Principal Secretary of State for Foreign Affairs, to request you to be so good as to inform me whether the United States Government will agree to regard this title as included in those mentioned in the arrangement concluded on the 2nd January, 1930. 4. Should your Government agree to this extension of the above-mentioned arrangement, I should be glad to receive from you an assurance that this note will be considered by the United States Government as a sufficient confirmation thereof on the part of His Majesty's Government in the United Kingdom. I have, etc. R. C. LINHSAY. IV. MR. STIMSON TO SIR R. LINDSAY. DEPARTMENT OF STATE. WASHINGTON, July 6, 1932. EXCELLENCY, I have the honour to acknowledge the receipt of your Excellency's note of this day's date in which your Excellency refers to the fact that in the notes exchanged between the Government of the United States of America and His Majesty's Government in the United Kingdom on the 2nd January, 1930, constituting an arrangement regarding certain islands off the coast of Borneo which have been administered by the British North Borneo Company in accordance with the arrangement effected by an exchange of notes between His Majesty's Government and the Government of the United States on the 3rd July and the loth July, 1907, the Government of the United States took note of the desire of His Majesty's Government that certain titles to land in certain of the islands which were in good faith granted by the Government of North Borneo prior to the arrangement of 1907 be allowed to stand on the terms on which they were issued by that Government. In relation to this matter, your Excellency states that His Majesty's Government regrets that the following title was inadvertently omitted from the list of land titles included in the above arrangement : Lihiman Island Provisional Lease No. 2417
Date of Alienation I. VI. 1907
Period 999 years
(Draft) First Edition, 2011 ( Annex III - 12 )
Area 13 acres 0 roods 24 perches
Notes in Constitutional Law I (Atty. Berne Guerrero) Under instructions from His Majesty's Principal Secretary of State for Foreign Affairs, your Excellency requests that I be so good as to inform you whether the Government of the United States will agree to regard this title as included in those mentioned in the arrangement concluded on the 2nd January, 1930. In reply, I am pleased to inform your Excellency that the Government of the United States agrees to the extension of the arrangement of the 2nd January, 1930, to include the above-mentioned title, and I take pleasure also in assuring your Excellency that your note under acknowledgment is considered by the Government of the United States as a"sufficient confirmation on the part of His Majesty's Government in the United Kingdom of the aforesaid extension. Accept, etc. For the Secretary of State : W. R. CASTLE, Jr. APPENDIX EXCHANGE OF NOTES CONCERNING THE ADMINISTRATION AND LEASE OF CERTAIN SMALL ISLANDS ON THE NORTH BORNEAN COAST BY THE BRITISH NORTH BORNEO COMPANY, SIGNED AT INTERVALE, N. H., JULY 3, 1907, AND AT WASHINGTON, JULY 10, 1907. MR. BRYCE TO MR. ELIHU ROOT. BRITISH EMBASSY. INTERVALE, N. H., July 3, 1907. Sir, I have the honour to inform you that His Majesty's Government, acting at the request and on behalf of the British North Borneo Company, are prepared to acquiesce in the last proposal stated in your letter to Sir H. M. Durand of the 19th December last, respecting the administration of certain islands on the east coast of Borneo. I am therefore instructed by His Majesty's Principal Secretary of State for Foreign Affairs to place the proposed arrangement formally on record without further delay. His Majesty's Government understands the terms of the arrangement to be as follows : Firstly. — That the said company be left undisturbed in the administration of the islands in question without any agreement specifying details, the United States Government simply waiving in favour of the said company the right to such administration in the meantime ; in other words, that the existing status be continued indefinitely at the pleasure of the two Governments concerned. Secondly. — That such privilege of administration shall not carry with it territorial rights, such as those of making grants or concessions in the islands in question to extend beyond the temporary occupation of the company ; and any grant, concession, or licence made by the company shall cease upon the termination of the company's occupation. Thirdly, — That the temporary waiver of the right of administration on the part of the United States Government shall cover all the islands to the westward and south- westward of the line traced on the map which accompanied Sir H. M. Durand's memorandum of the 23rd June, 1906, and which is annexed to and to be deemed to form part of this note. Fourthly. — That the British North Borneo Company, through His Majesty's Government, shall agree to the exception of the United States Government from any claim of allegation that the latter Government has incurred any responsibility in respect of acts done in or from any island within the said line. Fifthly. -— That the understanding shall continue until the said two Governments may by treaty delimit the (Draft) First Edition, 2011 ( Annex III - 13 )
Notes in Constitutional Law I (Atty. Berne Guerrero) boundary between their respective domains in that quarter or until the expiry of one year from the date when notice of termination be given by either to the other. Sixthly. — That in case of denunciation, the United States Government shall not be responsible for the value of any buildings or other permanent improvements which may have been erected or made by the company upon the islands, but permission is hereby given to the company to remove, at its own expense, any buildings or improvements erected by it, provided the interests of the United States be not injured thereby. I have, therefore, the honour to request you to be so good as to inform me whether the United States adhere to the terms of the arrangement above described, and I shall be glad to receive an assurance from you at the same time that this note will be considered by the United States Government as sufficient ratification of the above arrangement on the part of His Majesty's Government. James BRYCE. MR. ELIHU ROOT TO MR. BRYCE. DEPARTMENT OF STATE. WASHINGTON, July 10, 1907. EXCELLENCY, I have the honour to acknowledge the receipt of your note of the 3rd instant, by which you inform me that His Majesty's Government acting at the request and on behalf of the British North Borneo Company, are prepared to acquiesce in the last proposal stated in the letter of the 19 th December, 1906, from the Secretary of State to Sir H. M. Durand, respecting the administration of certain islands on the east coast of Borneo, and that you are therefore instructed by His Majesty's Principal Secretary of State for Foreign Affairs to place the proposed arrangement formally on record without further delay. The understanding of His Majesty's Government of the terms of the arrangement is stated by you to be as follows : (Firstly to Sixthly, inclusive —- as in the British Note) The understanding of His Majestys Government as above recited agreeing with that of the United States, I have the honour formally to announce the adherence of the United States to the arrangement and the acceptance of your note as sufficient ratification of the arrangement on the part of His Majesty's Government. I have, etc. Robert BACON, Acting Secretary.
(Draft) First Edition, 2011 ( Annex III - 14 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Annex D Republic Act 3046 For a copy of the original text, see http://www.lawphil.net/statutes/repacts/ra1961/ra_3046_1961.html
AN ACT DEFINE THE BASELINES OF THE TERRITORIAL SEA OF THE PHILIPPINES. WHEREAS, the Constitution of the Philippines describes the national territory as comprising all the territory ceded to the United States by the Treaty of Paris concluded between the United States and Spain on December 10, 1898, the limits of which are set forth in Article III of said treaty, together with all the islands embraced in the treaty concluded at Washington, between the United States and Spain on November 7, 1900, and in the treaty concluded between the United States and Great Britain on January 2, 1930, and all the territory over which the Government of the Philippine Islands exercised jurisdiction at the time of the adoption of the Constitution; WHEREAS, all the waters within the limits set forth in the above-mentioned treaties have always been regarded as part of the territory of the Philippine Islands; WHEREAS, all the waters around, between and connecting the various islands of the Philippines archipelago, irrespective of their width or dimension, have always been considered as necessary appurtenances of the land territory, forming part of the inland or internal waters of the Philippines; WHEREAS, all the waters beyond the outermost islands of the archipelago but within the limits of the boundaries set forth in the aforementioned treaties comprise the territorial sea of the Philippines; WHEREAS, the baselines from which the territorial sea of the Philippines is determined consist of straight lines joining appropriate points of the outermost islands of the archipelago; and WHEREAS, the said baselines should be clarified and specifically defined and described for the information of all concerned; Now, therefor, Section 1. The baselines for the territorial sea of the Philippines are hereby defined and described specifically as follows: N. Latitude
E. Longitude
Asimuth
Distance in Meters
Y'ami Island (E) Line 1 (Yami I. (E.) — Tumaruk Rk.)
21º07'03"
121º57'24"
353º27'
71,656
Tumaruk Rk. Line 2 (Tumaruk Rk. — Balintang Is.)
20º28'28"
122º02'06"
347º13'
58,105
Balintang Island Line 3 (Balingtang Is.— Didicas Rk.)
19º57'45"
122º09'28"
375º05'
97,755
Didicas Rk. Line 4 (Didicas Rk. - Iligan Pt.)
19º04'50"
122º12'18"
350º39'
86,155
Iligan Pt. Line 5 (Iligan Pt. - Ditolong Pt.)
18º18'45"
122º20'15"
351º23'
136,030
Ditolong Pt. Line 6 (Ditolong Pt. - Diviuisa Pt.)
17º05'50"
122º31'44"
16º56'
34,378
Diviuisa Pt. Line 7 (Diviuisa Pt. - Dijohan Pt.)
16º48'00"
122º26'06"
21º01'
57,781
(Draft) First Edition, 2011 ( Annex III - 15 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Dijohan Pt. Line 7a (Dijohan Pt. - Bulubalik Pt.)
16º18'45"
122º14'28"
10º52'
142,360
Bulubalik Pt. Line 8 (Bulubalik Pt. - Tinaga I.)
15º02'56"
121º59'30"
300º15'
120,986
Tinaga I. Line 9 (Tinaga I. - Horadaba Rks.)
14º29'45"
122º57'40"
286º27'
148,690
Horadaba Rks. Line 10 (Horadaba Rks. — Matulin Rk.)
14º06'41"
124º16'54"
306º34'
1,083
Matulin Rk. Line 11 (Matulin Rk. - Atalaya Pt.)
14º06'20"
124º17'23"
331º46'
178,480
Atalaya Pt. Line 11a (Atalaya Pt. - Finch Rk.)
12º40'59"
125º04'02"
313º30'
22,268
Finch Rk. Line 12 (Finch Rk. - SE of Manjud Pt.)
12º32'40"
125º12'57"
313º56'
12,665
SE Manjud pt. Line 12a (SE of Manjud Pt. - Sora Cay)
12º27'54"
125º17'59"
322º27'
14,225
Sora Cay Line 13 (Sora Cay - Bunga Pt.)
12º21'47"
125º22'46"
321º03'
22,793
Bunga Pt. Line 13a (Bunga Pt. - Tubabao I.)
12º12'10"
125º30'40"
331º50'
12,686
Tubabao I. Line 14 (Tubabao I. - Tugnug Pt.)
23º06'06"
125º33'58"
355º22'
83,235
Tugnug Pt. Line 15 (Tugnug Pt. - Suluan I.)
11º21'06"
125º37'40"
331º03'
75,326
Suluan Island Line 16 (Suluan I. - Tuason Pt.)
10º45'20"
125º57'40"
347º51'
107,070
Tuason Pt. Line 17 (Tuason Pt. - Cauit Pt.)
9º48'33"
126º10'00"
355º25'
55,415
Cauit Pt. Line 18 (Cauit Pt. Arangasa Is.)
9º18'35"
126º12'25"
342º44'
49,703
Arangasa Is. Line 19 Arangasa Is. - Quinablangan I.)
8º52'50"
126º20'28"
348º40'
131,330
Quinablangan I. Line 19a (Quinablangan I. - Above Languyan R.)
7º42'58"
126º34'30"
353º08'
25,619
Above Languyan R. Line 20 (Above Languyan R. — Pusan Pt.)
7º29'10"
126º36'10"
356º52'
22,489
Pusan Pt. Line 21 (Pusan Pt. - Tuguban Pt.)
7º16'59"
126º36'50"
26º39'
36,259
Tuguban Pt. Line 22 (Tuguban Pt. - Cape S. Agustin N.)
6º59'24"
126º28'00"
20º33'
83,350
(Draft) First Edition, 2011 ( Annex III - 16 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Cape San Agustin (N) Line 22a (Cape S. Agustin (N) — Cape San Agustin (S)
6º17'03"
126º12'08"
30º16'
1,707
Cape San Agustin (S) Line 23 (Cape S. Agustin (S) — Panguil Bato Pt.)
6º16'15"
126º11'40"
39º23'
125,100
Panguil Bato Pt. Line 23a (Panguil Bato Pt. - Tapundo Pt.)
5º23'45"
125º28'42"
66º32'
7,484
Tapudo Pt. Line 24 (Tapundo Pt. - Manamil I.)
5º22'08"
125º24'59"
89º19'
7,667
Manamil I. Line 24a (Manamil I. - Balut I. (W)
5º22'05"
125º20'50"
139º01'
3,051
Balut I. (W) Line 25 (Balut I. (W) - Middle of 3 Rk. Awash)
5º23'20"
125º19'45"
124º47'
149,840
Middle of 3 Rk. Awash Line 26 (Middle of 3 Rk. Awash — Tongquil I.)
6º09'39"
124º13'02"
86º18'
259,400
Tongquil I. Line 27 (Tongquil I. - Sumbasumba I.)
6º00'15"
121º52'45"
61º29'
115,950
Sumbasumba I. Line 28 (Sumbasumba I. - Kinapusan Is.)
5º30'10"
120º57'35"
43º19'
44,445
Kinapusan Is. Line 29 (Kinapusan Is. - Manuk Manka I.)
5º12'37"
120º41'05"
63º14'
101,290
Manuk Manka I. Line 30 (Manuk Manka I. - Frances Reef)
4º47'50"
119º52'10"
58º30'
80,847
Frances Reef Line 31 (Frances Reef - Bajapa Reef)
4º24'54"
119º14'54"
134º34'
29,330
Bajapa Reef Line 32 (Bajapa Reef) - Panguan I.)
4º36'04"
119º03'36"
164º05'
13,480
Panguan I. Line 33 (Panguan I. - Omapoy I.)
4º43'06"
119º01'36"
238º48'
42,470
Omapoy I. Line 34 (Omapoy I. - Sanga-Sanga I.)
4º55'02"
119º21'15"
246º11'
51,005
Sanga-Sanga I. Line 35 (Sanga-Sanga I. - Pearl Bank)
5º06'12"
119º46'30"
170º05'
80,200
Pearl Bank Line 36 (Pearl Bank - Baguan I.)
5º49'04"
119º39'01"
103º13'
137,050
Baguan I Line 36a (Banguan I. - Taganak I.)
6º06'00"
118º26'42"
76º52'
15,535
Taganak I. Line 37 (Taganak I. - Gt. Bakkungaan O
6º04'05"
118º18'30"
118º39'
24,805
Gt. Bakkungaan
6º10'32"
118º06'42"
136º04'
18,470
(Draft) First Edition, 2011 ( Annex III - 17 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Line 37a (Gt. Bakkungaan - Sibaung I.) Sibaung I. Line 38 (Sibaung - I. Muligi I.
6º17'45"
117º59'45"
215º36'
79,915
Mulugi I. Line 39 (Mulugi I. - Mangsee Is.)
6º53'00"
118º25'00"
119º14'
140,541
Mangsee Is. Line 39a (Mangsee Is. - Cape Melville)
7º30'10"
117º18'20"
134º50
48,815
Cape Melville Line 40 (Cape Melville - Ligas Pt.)
7º48'50"
116º59'30"
153º54'
15,665
Ligas Pt. Line 41 (Ligas Pt. - Cay)
7º56'28"
116º55'45"
170º40'
5,666
Cay Line 41a (Cay-Secam I.)
7º59'30"
116º55'15"
204º52'
22,925
Secam I. Line 42 (Secam I. - N. of Canipan Bay)
8º10'47"
117º00'30"
209º09'
54,900
N. of Canipan Bay Line 43 (N. of Canipan Bay — Tatub Pt.)
8º36'50"
117º15'06"
218º57'
18,570
Tatub Pt. Line 44 (Tatub Pt. - Punta Baja)
8º44'40"
117º21'28"
222º04'
45,125
Punta Baja Line 45 (Punta Baja - Malapackun I.)
9º02'50"
117º37'58"
223º30'
32,194
Malapackun I. Line 46 (Malapackun I. - Piedras Pt.)
9º15'30"
117º50'04"
225º50'
148,260
Piedras Pt. Line 47 (Piedras Pt. - Tapuitan I.)
10º11'28"
118º48'18"
203º19'
124,900
Tapuitan I. Line 48 (Tapuitan I. - Pinnacle Rk.)
11º13'40"
119º15'28"
208º47'
136,590
Pincle Rk. Line 49 (Pinnacle Rk. - Cape Calavite
12º18'34"
119º51'45"
200º40'
134,230
Cape Calavite Line 50 (Cape Calavite - Cabra I.)
13º26'40"
120º18'00"
148º12'
58,235
Cabra I. Line 51 (Cabra I. - Capones Is.)
13º53'30"
120º00'58"
179º26'
113,400
Capones Is. Line 52 (Capones Is. - Pa-Lauig Pt.)
14º55'00"
120º00'20"
168º09'
58,100
Palauig Pt. Line 53 (Palauig. - Hermana Mayor I.)
15º25'50"
119º53'40"
164º17'
40,870
Hermana Mayor I. Line 53a (Hermana Mayor — Tambobo Pt.)
15º47'10"
119º47'28"
167º10'
20,490
Tambobo Pt.
15º58'00"
119º44'55"
181º43'
22,910
(Draft) First Edition, 2011 ( Annex III - 18 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Line 54 (Tambobo Pt. - Rena Pt.) Rena Pt. Line 54a (Rena Pt. - Cape Bolinao
16º10'25"
119º45'18"
191º39'
18,675
Cape Bolinao Line 55 (Cape Bolinao - Darigayos Pt.)
16º20'20"
119º47'25"
226º20'
80,016
Darigayos Pt. Line 56 (Darigayos Pt. - Dile Pt.)
16º50'15"
120º20'00"
179º58'
81,616
Dile Pt. Line 56a (Disle Pt. - Pinget I.)
17º34'30"
120º19'58"
188º27'
12,060
Pinget I. Line 56b (Pinget I. - Badoc I.)
17º40'58"
120º20'58"
192º46'
27,170
Badoc I. Line 57 (Badoc I. - Cape Bojeador)
17º55'20"
120º24'22"
195º03'
65,270
Cape Bojeador Line 58 (Cape Bojeador - Dalupiri I.)
18º29'30"
120º34'00"
222º16'
101,740
Dalupiri I. Line 59 (Dalupiri I. - Catanapan Pt.)
19º10'15"
121º13'02"
213º29'
25,075
Catanapan Pt. Line 60 (Catanapan Pt. - Dequey I.)
19º21'35"
121º20'56"
202º27'
116,870
Dequey I. Line 61 (Dequey I. - Raile)
29º20'06"
121º46'35"
180º47'
42,255
Raile Line 62 (Raile - Y'ami I. (W)
20º43'00"
121º46'55"
200º30'
48,140
Y'ami I.(W) Line 63 (Y'ami I. (W) - Y'ami I. (M)
21º07'26"
121º56'39"
238º40'
237
Y'ami I. (M) Line 64 (Y'ami I.(M) - Y'ami I. (E)
21º07'30"
121º56'46"
307º08'
1,376
Y'ami I. (E)
21º07'03"
121º57'24"
Section 2. All waters within the baselines provided for in Section one hereof are considered inland or internal waters of the Philippines. Section 3. This Act shall take effect upon its approval. Approved: June 17, 1961.
(Draft) First Edition, 2011 ( Annex III - 19 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Annex E Republic Act 5446 For a copy of the original text, see http://www.lawphil.net/statutes/repacts/ra1968/ra_5446_1968.html
AN ACT TO AMEND SECTION ONE OF REPUBLIC ACT NUMBERED THIRTY HUNDRED AND FORTYSIX, ENTITLED "AN ACT TO DEFINE THE BASELINES OF THE TERRITORIAL SEA OF THE PHILIPPINES" Section 1. To correct typographical errors, Section one of Republic Act numbered thirty hundred and forty-six is amended to read as follows: "SECTION 1. The baselines for the territorial sea of the Philippines are hereby defined and described specifically as follows: N. Latitude Y’ami Island (E) Line 1 (Y’ami I. (E.) - Tumaruk Rk.) Tumaruk Rk. Line 2 (Tumaruk Rk. - Balintang Is.) Balintang Islands Line 3 (Balintang Is. - Didicas Rk.) Didicas Rk. Line 4 (Didicas Rk. - Iligan Pt.) Iligan Pt. Line 5 (Iligan Pt. - Ditolong Pt.) Ditolong Pt. Line 6 (Ditolong Pt. - Diviuisa Pt.) Diviuisa Pt. Line 7 (Diviuisa Pt. - Dijohan Pt.) Dijohan Pt. Line 7a (Dijohan Pt. - Bulubalik Pt.) Bulubalik Pt. Line 8 (Bulubalik Pt. - Tinaga I.) Tinaga I. Line 9 (Tinaga I. - Horadaba Rks.) Horadaba Rks. Line 10 (Horadaba Rks. - Matulin Rk.) Matulin Rk. Line 11 (Matulin Rk. - Atalaya Pt.) Atalaya Pt. Line 11a (Atalaya Pt. - Finch Rk.) Finch Rk. Line 12 (Finch Rk. - SE of Manjud Pt.) SE Manjud Pt.
21º07’03"
E. Longitude
122º02’06"
19º57’45"
122º09’28"
19º04’50"
122º12’18"
122º31’44"
16º48’00"
122º26’06"
121º59’30"
14º29’45"
122º57’40"
347º13’
58,105
357º05’
97,755
350º39’
86,155
351º23’
136,030
16º56’
34,375
21º01’
57,781
10º52’
142,360
300º15’
120,980
286º27’
148,690
306º34’
1,083
331º46’
178,480
313º30’
22,263
313º56’
12,663
124º16’54"
14º06’20"
124º17’23"
12º40’59"
125º04’02"
12º32’40"
125º12’57"
12º27’54"
71,656
122º14’28"
15º02’56"
14º06’41"
353º27’
122º20’15"
17º05’50"
16º18’45"
Distance (In Meters)
121º57’24"
20º28’28"
18º18’45"
Azimuth
125º17’59"
(Draft) First Edition, 2011 ( Annex III - 20 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Line 12a (SE of Manjud Pt. - Sora Cay) Sora Cay 12º21’47" Line 13 (Sora Cay - Bunga Pt.) Bunga Pt. 12º12’10" Line 13a (Bunga Pt. - Tubabao I.) Tubabao I. 12º06’06" Line 14 (Tubabao I. - Tugnug Pt.) Tugnug Pt. 11º12’06" Line 15 (Tugnug Pt. - Suluan I.) Suluan Island 10º45’20" Line 16 (Suluan I. - Tuason Pt.) Tuason Pt. 9º48’33" Line 17 (Tuason Pt. - Cauit Pt.) Cauit Pt. 9º18’35" Line 18 (Cauit Pt. Arangasa Is.) Arangasa Is. 8º52’50" Line 19 (Arangasa Is. - Quinablangan I.) Quinablangan I. 7º42’58" Line 19a (Quinablangan I - Above Languyan R.) Above Languyan R. 7º29’10" Line 20 (Above Languyan R. - Pusan Pt.) Pusan Pt. 7º16’59" Line 21 (Pusan Pt. - Tugubun Pt.) Tugubun Pt. 6º59’24" Line 22 (Tugubun Pt. - Cape S. Agustin N.) Cape San Agustin (N) 6º17’03" Line 22a (Cape S. Agustin (N) - Cape San Agustin (S) Cape San Agustin (S) 6º16’15" Line 23 (Cape S. Agustin (S) - Panguil Bato Pt.) Panguil Bato Pt. 5º23’45" Line 23a (Panguil Bato Pt. - Tapundo Pt.) Tapundo Pt. 5º22’08" Line 24 (Tapundo Pt. - Manamil I.) Manamil I. 5º22’05" Line 24a (Manamil I. - Balut I. (W) Balut I. (W) 5º23’20" Line 25 (Balut I. (W) - Middle of 3 Rk. Awash) Middle of 3 Rk. Awash 6º09’39" Line 26 (Middle of 3 Rk. Awash - Tongquil I.) Tongquil I. 6º00’15" Line 27 (Tongquil I. - Sumbasumba I.) Sumbasumba I. 5º30’10" Line 28 (Sumbasumba I. - Kinapusan Is.) Kinapusan Is. 5º12’37"
322º27’
14,225
321º03’
22,761
331º50’
12,646
355º22’
83,225
331º03’
75,326
347º51’
107,070
355º25’
55,415
342º44’
49,703
348º40’
131,330
353º08’
25,619
356º52’
22,489
26º39’
36,259
20º33’
83,350
30º16’
1,707
39º23’
125,100
66º32’
7,484
89º19’
7,667
139º01’
3,051
124º47’
149,840
86º18’
259,400
61º29’
115,950
43º19’
44,445
125º22’46" 125º30’40" 125º33’58" 125º37’40" 125º37’40" 126º10’00" 126º12’25" 126º20’28" 126º34’30" 126º36’10" 126º36’50" 126º28’00" 126º12’08" 126º11’40" 125º28’42" 125º24’59" 125º20’50" 125º19’45" 124º13’02" 121º52’45" 120º57’35" 120º41’05"
(Draft) First Edition, 2011 ( Annex III - 21 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Line 29 (Kinapusan Is. - Manuk Manka I.) Manuk Manka I. Line 30 (Manuk Manka I. - Frances Reef) Frances Reef Line 31 (Frances Reef - Bajapa Reef) Bajapa Reef Line 32 (Bajapa Reef - Panguan I.) Panguan I. Line 33 (Panguan I. - Omapoy I.) Omapoy I. Line 34 (Omapoy I. - Sanga-Sanga I.) Sanga-Sanga I. Line 35 (Sanga-Sanga I. - Pearl Bank) Pearl Bank Line 36 (Pearl Bank - Baguan I.) Baguan I. Line 36a (Baguan I. - Taganak I.) Taganak I. Line 37 (Taganak I. - Gt. Bakkungaan) Gt. Bakkungaan Line 37a (Gt. Bakkungaan-Sibaung I.) Sibaung I. Line 38 (Sibaung - I. Muligi I.) Muligi I. Line 39 (Muligi I. - Mangsee Is.) Mangsee Is. Line 39a (Mangsee Is. - Cape Melville) Cape Melville Line 40 (Cape Melville - Ligas Pt.) Ligas Pt. Line 41 (Ligas Pt. - Cay) Cay Line 41a (Cay-Secam I.) Secam I. Line 42 (Secam I. - N. of Canipan Bay) N. of Canipan Bay Line 43 (N. of Canipan Bay-Tatub Pt.) Tatub Pt. Line 44 (Tatub Pt. - Punta Baja) Punta Baja Line 45 (Punta Baja - Malapackun I.) Malapackun I. Line 46 (Malapackun I. - Piedras Pt.) Piedras Pt.
4º47’50"
119º14’54"
4º36’04"
119º03’36"
119º21’15"
5º06’12"
119º46’30"
118º26’42"
6º04’05"
118º18’30"
6º17’45"
7º30’10"
117º18’20"
116º55’45"
7º59’30"
116º55’15"
117º15’06"
8º44’40"
117º21’28"
10º11’28"
13,480
238º48’
42,470
246º11’
51,003
170º05’
80,200
103º13’
137,050
76º52’
15,535
118º39’
24,805
136º04’
18,470
215º36’
79,915
119º14’
140,541
134º50’
48,815
153º54’
15,665
170º40’
5,666
204º52’
22,925
209º09’
54,990
218º57’
18,570
222º04’
45,125
223º30’
32,195
225º50’
148,260
117º00’30"
8º36’50"
9º15’30"
164º05’
116º59’30"
7º56’28"
9º02’50"
29,330
117º59’45" 118º25’00"
8º10’47"
134º34’
118º06’42"
6º53’00"
7º48’50"
80,847
119º39’01"
6º06’00"
6º10’32"
58º30’
119º01’36"
4º55’02"
5º49’04"
101,290
119º52’10"
4º24’54"
4º43’06"
63º14’
117º37’58" 117º50’04" 118º48’18"
(Draft) First Edition, 2011 ( Annex III - 22 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Line 47 (Piedras Pt. - Tapiutan I.) Tapiutan I. Line 48 (Tapiutan I. - Pinnacle Rk.) Pinnacle Rk. Line 49 (Pinnacle Rk. - Cape Calavite) Cape Calavite Line 50 (Cape Calavite-Cabra I.) Cabra I. Line 51 (Cabra I. - Capones Is.) Capones Is. Line 52 (Capones Is. - Palauig Pt.) Palauig Pt. Line 53 (Palauig. - Hermana Mayor I.) Hermana Mayor I. Line 53a (Hermana Mayor I. - Tambobo Pt.) Tambobo Pt. Line 54 (Tambobo Pt. - Rena Pt.) Rena Pt. Line 54a (Rena Pt. - Cape Bolinao) Cape Bolinao Line 55 (Cape Bolinao - Darigayos Pt.) Darigayos Pt. Line 56 (Darigayos Pt. - Dile Pt.) Dile Pt. Line 56a (Dile Pt. - Pinget I.) Pinget I. Line 56b (Pinget I. - Badoc I.) Badoc I. Line 57 (Badoc I. - Cape Bojeador) Cape Bojeador Line 58 (Cape Bojeador - Dalupiri I.) Dalupiri I. Line 59 (Dalupiri I. - Catanapan Pt.) Catanapan Pt. Line 60 (Catanapan Pt. - Dequey I.) Dequey I. Line 61 (Dequey I. - Raile) Raile Line 62 (Raile - Y’ami I. (W) Y’ami I. (W) Line 63 (Y’ami I. (W) - Y’ami I. (M) Y’ami I. (M) Line 64 (Y’ami I. (M) - Y’ami I. (E) Y’ami I. (E)
11º13’40"
119º51’45"
13º26’40"
120º18’00"
120º00’20"
15º25’50"
119º53’40"
119º44’55"
16º10’25"
119º45’18"
16º50’15"
17º40’58"
120º20’58"
120º34’00"
19º10’15"
121º13’02"
121º46’35"
20º43’00"
121º46’55"
21º07’03"
58,235
179º26’
113,400
168º09’
58,100
164º17’
40,870
167º10’
20,490
181º43’
22,910
191º39’
18,675
226º20’
80,016
179º58’
81,616
188º27’
12,060
192º46’
27,170
195º03’
65,270
222º16’
101,740
213º29’
25,075
202º27’
116,870
180º47’
42,255
200º30’
48,140
238º40’
237
307º08’
1,376
121º20’56"
20º20’06"
21º07’30"
148º12’
120º24’22"
18º29’30"
21º07’26"
134,230
120º20’00" 120º19’58"
19º21’35"
200º40’
119º47’25"
17º34’30"
17º55’20"
136,590
119º47’28"
15º58’00"
16º20’20"
208º47’
120º00’58"
14º55’00"
15º47’10"
124,900
119º15’28"
12º18’34"
13º53’30"
203º19’
121º56’39" 121º56’46" 121º57’24"
(Draft) First Edition, 2011 ( Annex III - 23 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in this Act is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty. Section 3. This Act shall take effect upon its approval. Approved: September 18, 1968
(Draft) First Edition, 2011 ( Annex III - 24 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Annex F Republic Act 5446 For a copy of the original text, see http://www.lawphil.net/statutes/repacts/ra2009/ra_9522_2009.html
AN ACT TO AMEND CERTAIN PROVISIONS OF REPUBLIC ACT NO. 3046, AS AMENDED BY REPUBLIC ACT NO. 5446, TO DEFINE THE ARCHIPELAGIC BASELINE OF THE PHILIPPINES AND FOR OTHER PURPOSES Section 1. Section 1 of Republic Act No. 3046, entitled "An Act to Define the Baselines of the Territorial Sea of the Philippines", as amended by Section 1 of Republic Act No. 5446, is hereby amended to read as follows: Section 1. The baselines of the Philippines archipelago are hereby defined and described specifically as follows: Basepoint Number
Station Name
Location
World Geodetic System of 1984 (WGS 84) Coordinates Latitude (N)
Longitude (E)
Distance to next basepoint (M)
1 PAB-01
Amianan Is.
21º6’57.73"
121º57’27.71"
70.08
2 PAB-02
Balintang Is.
19º57’38.19"
122º9’46.32"
99.17
3 PAB-04
Bigan Pt.
18º18’35.30"
122º20’19.07"
71.83
4 PAB-05A
Ditolong Pt.
17º7’16.30"
122º31’28.34"
1.05
5 PAB-05B
Ditolong Pt.
17º6’14.79"
122º31’43.84"
0.39
6 PAB-05
Ditolong Pt.
17º5’51.31"
122º31’42.66"
3.29
7 PAB-06
Spires Is.
17º2’36.91"
122º31’3.28"
9.74
8 PAB-06B
Digollorin Pt.
16º59’18.03"
122º27’56.61"
3.51
9 PAB-06C
Digollorin Rk.
16º49’56.11"
122º26’50.78"
2.40
10 PAB-07
Divimisa Pt.
16º47’38.86"
122º26’4.40"
30.94
11 PAB-08
Dinoban Pt.
16º18’44.33"
122º14’06.69"
116.26
12 PAB-10A
Tinaga Is.
14º29’54.43"
122º57’51.15"
80.29
13 PAB-11
Horodaba Rk.
14º6.29.91"
124º16’59.21"
0.54
14 PAB-12
Matulin Rk.
14º6.10.40"
124º17’26.28"
96.04
15 PAB-13
Atalaya Pt.
12º41’6.37"
125º3’53.71"
6.79
16 PAB-13A
Bacan Is.
12º36’18.41"
125º8’50.19"
5.52
17 PAB-14
Finch Rk.
12º32.33.62"
125º12’59.70"
0.80
18 PAB-14A
Cube Rk.
12º31.57.45"
125º13’32.37"
4.90
19 PAB-14D
NW Manjud Pt.
12º28’36.42"
125º17’12.32"
1.30
20 PAB-15
SE Manjud Pt.
12º27’37.51"
125º18’5.23"
7.09
21 PAB-16A
S Sorz Cay
12º21’41.64"
125º23’7.41"
5.68
22 PAB-16B
Panablihon
12º17’27.17"
125º27’0.12"
5.21
23 PAB-16C
Alugon
12º13’21.95"
125º30’19.47"
1.94
24 PAB-16D
N Bunga Pt.
12º11’48.16"
125º31’30.88"
0.54
25 PAB-17
E Bunga Pt.
12º11’20.67"
125º31’48.29"
5.71
(Draft) First Edition, 2011 ( Annex III - 25 )
Notes in Constitutional Law I (Atty. Berne Guerrero) 26 PAB-18A
SE Tobabao Is.
12º6’7.00"
125º34’11.94"
83.94
27 PAB-19C
Suluan Is.
10º45’16.70"
125º58’8.78"
56.28
28 PAB-19D
N Tuason Pt.
9º49’59.58"
126º10’6.39"
57.44
29 PAB-20A
Arangasa Is.
8º53’16.62"
126º20’48.81"
40.69
30 PAB-21B
Sanco Pt.
8º13’11.53"
126º28’53.25"
30.80
31 PAB-22
Bagoso Is
7º42’45.02"
126º34’29.08"
12.95
32 PAB-22C
Languyan
7º29’49.47"
126º35’59.24"
0.54
33 PAB-23
Languyan
7º29’16.93"
126º35’59.50"
0.76
34 PAB-23B
Languyan
7º28’30.97"
126º35’57.30"
1.2
35 PAB-23C
N Baculin Pt.
7º27’29.42"
126º35’51.31"
10.12
36 PAB-24
Pusan Pt.
7º17’19.80"
126º36’18.26"
1.14
37 PAB-24A
S Pusan Pt.
7º16’14.43"
126º35’57.20"
63.28
38 PAB-25B
Cape San Agustin
6º17’14.73"
126º12’14.40"
1.28
39 PAB-25
Cape San Agustin
6º16’8.35"
126º11’35.06"
67.65
40 PAB-26
SE Sarangani Is.
5º23’34.20"
125º28’42.11"
0.43
41 PAB-27
Pangil Bato Pt.
5º23’21.80"
125º28’19.59"
3.44
42 PAB-28
Tapundo Pt.
6º21’55.66"
126º25’11.21"
3.31
43 PAB-29
W Calia Pt.
5º21’58.48"
125º21’52.03"
0.87
44 PAB-30
Manamil Is.
5º22’2.91"
125º20’59.73"
1.79
45 PAB-31
Marampog Pt.
5º23’20.18"
125º19’44.29"
78.42
46 PAB-32
Pola Pt.
6º9’8.44"
124º15’42.81"
122.88
47 PAB-33A
Kantuan Is
6º26’47.22"
122º13.34.50"
29.44
48 PAB-34A
Tongguil Is.
6º2’33.77"
121º56’36.20"
2.38
49 PAB-35
Tongquil Is
6º1’8.51"
121º54’41.45"
1.72
50 PAB-35A
Tongquil Is.
6º0’17.88"
121º63’11.17"
85.94
51 PAB-38A
Kirapusan Is
5º12.8.70"
120º41’38.14"
55.24
52 PAB-39
Manuk Manka Is.
4º47’39.24"
119º51’58.08"
43.44
53 PAB-40
Frances Reef
4º24’53.84"
119º14’50.71
0.61
54 PAB-40A
Frances Reef
4º25’3.83"
119º14’15.15"
15.48
55 PAB-41A
Bajapa Reef
4º36"9.01"
119º3’22.75"
6.88
56 PAB-42A
Paguan Is.
4º42’52.07"
119º1’44.04"
8.40
57 PAB-43
Alice Reef
4º45’55.25"
119º3’15.19"
2.28
58 PAB-44
Alice Reef
4º47’5.36"
119º5’12.94"
18.60
59 PAB-45
Omapoy Rk.
4º55’10.45"
119º22’1.30
23.37
60 PAB-46
Bukut Lapis Pt.
5º2’23.73"
119º44’18.14"
44.20
61 PAB-47
Pearl Bank
5º46’35.15"
119º39’51.77"
75.17
62 PAB-48
Bagnan Is.
6º5’58.41"
118º26’57.30"
8.54
63 PAB-48A
Taganak Is
6º4’14.08"
118º18’33.33"
13.46
64 PAB-49
Great Bakkungaan Is.
6º11’4.65"
118º6’54.15"
3.97
65 PAB-50
Libiman Is.
6º13’39.90"
118º3’52.09"
5.53
(Draft) First Edition, 2011 ( Annex III - 26 )
Notes in Constitutional Law I (Atty. Berne Guerrero) 66 PAB-51
Sibaung Is.
6º17’43.99"
118º0’5.44"
41.60
67 PAB-52
Muligi Is.
6º52’14.53"
118º23’40.49"
75.06
68 PAB-53
South Mangsee Is.
7º30’26.05"
117º18’33.75"
26.00
69 PAB-54
Balabac Is.
7º48’30.69"
116º59’39.18"
6.08
70 PAB-54A
Balabac Great Reef
7º51’27.17"
116º54’17.19"
1.18
71 PAB-54B
Balabac Great Reef
7º52’19.86"
116º53’28.73"
2.27
72 PAB-55
Balabac Great Reef
7º54’36.35"
116º53’16.64"
5.42
73 PAB-60
Ada Reef
8º2’0.26"
116º54’10.04"
10.85
74 PAB.61
Secam Is.
8º11’18.36"
116º59’51.87"
30.88
75 PAB-62
Latua Pt.
8º87’56.37"
117º15’51.23"
7.91
76 PAB-63
SW Tatub Pt.
8º44’17.40"
117º20’39.37"
11.89
77 PAB-63A
W Sicud Pt.
8º53’32.20"
117º28’15.78"
13.20
78 PAB-64
Tarumpitao Pt.
9º2.57.47"
117º37’38.88"
81.12
79 PAB.64B
Dry Is.
9º59’22.54"
118º36’53.61"
82.76
80 PAB-65C
Sinangcolan Pt.
11º13’19.82"
119º15’17.74"
74.65
81 PAB-67
Pinnacle Rk.
12º19’35.22"
119º50’56.00
93.88
82 PAB-68
Cabra Is
13º53’24.45"
120º1’5.86"
115.69
83 PAB-71
Hermana Mayor Is.
15º48’43.61"
119º46’56.09"
9.30
84 PAB-72
Tambobo Pt.
15º57’61.67"
119º44’55.32"
12.06
85 PAB-72B
Rena Pt.
16º9’57.90"
119º45.15.76"
0.25
86 PAB-73
Rena Pt.
16º10’12.42"
119º45’11.95"
6.43
87 PAB-74
Rocky Ledge
16º16’34.46"
119º46’19.50"
0.65
88 PAB-74A
Piedra Pt.
16º37’12.70"
119º46’28.62"
1.30
89 PAB-75
Piedra Pt.
16º18’29.49"
119º46’44.94"
1.04
90 PAB-75C
Piedra Pt.
16º19’28.20"
119º47’7.69"
0.63
91 PAB-75D
Piedra Pt.
16º20’4.38"
119º47’20.48"
80.60
92 PAB-76
Dile Pt.
17º34’24.94"
120º20’33.36"
6.86
93 PAB-77
Pinget Is.
17º41’17.56"
120º21’2.20"
14.15
94 PAB-78
Baboc Is.
17º55’4.13"
120º24’40.56"
35.40
95 PAB-79
Cape Bojeador
18º29’32.42"
120º33’42.41"
1.77
96 PAB-79B
Bobon
18º30’52.88"
120º34’55.35"
58.23
97 PAB-80
Calagangan Pt.
19º10’14.78"
121º12’52.64"
98.07
98 PAB-82
Itbayat Is.
20º43’15.74"
121º46’57.80"
25.63
99 PAB-83
Amianan Is
21º7’17.47"
121º56’43.85"
0.08
100 PAB-84
Amianan Is.
21º7’18.41"
121º56’48.79"
0.25
101 PAB-85
Amianan Is.
21º7’12.04"
121º57’3.65"
0.44
Section 2. The baseline in the following areas over which the Philippines likewise exercises sovereignty and jurisdiction shall be determined as "Regime of Islands" under the Republic of the Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS): a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596; and (Draft) First Edition, 2011 ( Annex III - 27 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
b) Bajo de Masinloc, also known as Scarborough Shoal. Section 3. This Act affirms that the Republic of the Philippines has dominion, sovereignty and jurisdiction over all portions of the national territory as defined in the Constitution and by provisions of applicable laws including, without limitation, Republic Act No. 7160, otherwise known as the Local Government Code of 1991, as amended. Section 4. This Act, together with the geographic coordinates and the chart and maps indicating the aforesaid baselines, shall be deposited and registered with the Secretary General of the United Nations. Section 5. The National Mapping and Resource Information Authority (NAMRIA) shall forthwith produce and publish charts and maps of the appropriate scale clearly representing the delineation of basepoints and baselines as set forth in this Act. Section 6. The amount necessary to carry out the provisions of this Act shall be provided in a supplemental budyet or included in the General Appropriations Act of the year of its enactment into law. Section 7. If any portion or provision of this Act is declared unconstitutional or invalid the other portions or provisions hereof which are not affected thereby shall continue to be in full force and effect. Section 8. The provisions of Republic Act No. 3046, as amended by Republic Act No. 5446, and all other laws, decrees, executive orders, rules and issuances inconsistent with this Act are hereby amended or modified accordingly. Section 9. This Act shall take effect fifteen (15) days following its publication in the Official Gazette or in any two (2) newspaper of general circulation. Approved, 10 March 2009.
(Draft) First Edition, 2011 ( Annex III - 28 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Annex G Presidential Decree 1596 For a copy of the original text, see http://www.chanrobles.com/presidentialdecrees/presidentialdecreeno1596.html
DECLARING CERTAIN AREA PART OF THE PHILIPPINE TERRITORY AND PROVIDING FOR THEIR GOVERNMENT AND ADMINISTRATION WHEREAS, by reason of their proximity the cluster of islands and islets in the South China Sea situated within the following: KALAYAAN ISLAND GROUP From a point [on the Philippine Treaty Limits] at latitude 7º40' North and longitude 116º00 East of Greenwich, thence due West along the parallel of 7º40' N to its intersection with the meridian of longitude 112º10' E, thence due north along the meridian of 112º10' E to its intersection with the parallel of 9º00' N, thence northeastward to the intersection of parallel of 12º00' N with the meridian of longitude 114º30' E, thence, due East along the parallel of 12º00' N to its intersection with the meridian of 118º00' E, thence, due South along the meridian of longitude 118º00' E to its intersection with the parallel of 10º00' N, thence Southwestwards to the point of beginning at 7º40' N, latitude and 116º00' E longitude. are vital to the security and economic survival of the Philippines; WHEREAS, much of the above area is part of the continental margin of the Philippine archipelago; WHEREAS, these areas do not legally belong to any state or nation but, by reason of history, indispensable need, and effective occupation and control established in accordance with the international law, such areas must now deemed to belong and subject to the sovereignty of the Philippines; WHEREAS, while other states have laid claims to some of these areas, their claims have lapsed by abandonment and can not prevail over that of the Philippines on legal, historical, and equitable grounds. NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby decree as follows: Section 1. The area within the following boundaries: KALAYAAN ISLAND GROUP From a point [on the Philippine Treaty Limits] at latitude 7º40' North and longitude 116º00' East of Greenwich, thence due West along the parallel of 7º40' N to its intersection with the meridian of longitude 112º10' E, thence due north along the meridian of 112º10' E to its intersection with the parallel of 9º00' N, thence northeastward to the intersection of parallel of 12º00' N with the meridian of longitude 114º30' E, thence, due East along the parallel of 12º00' N to its intersection with the meridian of 118º00' E, thence, due South along the meridian of longitude 118º00' E to its intersection with the parallel of 10º00' N, thence Southwestwards to the point of beginning at 7º40' N, latitude and 116º00' E longitude; including the sea-bed, sub-soil, continental margin andr space shall belong and be subject to the sovereignty of the Philippines. Such area is hereby constituted as a distinct and separate municipality of the Province of Palawan and shall be known as "Kalayaan." Section 2. Pending the election of its regular officials and during the period of emergency declared in Proclamation No. (Draft) First Edition, 2011 ( Annex III - 29 )
Notes in Constitutional Law I (Atty. Berne Guerrero) 1081, and unless earlier provided by law, the administration and government of the area shall be vested in the Secretary of National Defense or in such officers of the Civil government or the Armed Forces of the Philippines as the President may designate. Section 3. This Decree shall take effect immediately. Done in the City of Manila, this 11th day of June, in the year of Our Lord, nineteen hundred and seventy-eight.
(Draft) First Edition, 2011 ( Annex III - 30 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Annex H Presidential Decree 1599 For a copy of the original text, see http://www.chanrobles.com/presidentialdecrees/presidentialdecreeno1599.html
ESTABLISHING AN EXCLUSIVE ECONOMIC ZONE AND FOR OTHER PURPOSES WHEREAS, an exclusive economic zone extending to a distance of two hundred nautical miles from the baselines from which the territorial sea is measured is vital to the economic survival and development of the Republic of the Philippines; WHEREAS, such a zone is now a recognized principle of international law; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby decree and order: Section 1. There is hereby established a zone to be known as the exclusive economic zone of the Philippines. The exclusive economic zone shall extend to a distance of two hundred nautical miles beyond and from the baselines from which the territorial sea is measured: Provided, That, where the outer limits of the zone as thus determined overlap the exclusive economic zone of an adjacent or neighboring state, the common boundaries shall be determined by agreement with the state concerned or in accordance with pertinent generally recognized principles of international law on delimitation. Section 2. Without prejudice to the rights of the Republic of the Philippines over it territorial sea and continental shelf, it shall have and exercise in the exclusive economic zone established herein the following; (a) Sovereignty rights for the purpose of exploration and exploitation, conservation and management of the natural resources, whether living or non-living, both renewable and non-renewable, of the sea-bed, including the subsoil and the superjacent waters, and with regard to other activities for the economic exploitation and exploration of the resources of the zone, such as the production of energy from the water, currents and winds; (b) Exclusive rights and jurisdiction with respect to the establishment and utilization of artificial islands, off-shore terminals, installations and structures, the preservation of the marine environment, including the prevention and control of pollution, and scientific research; (c)
Such other rights as are recognized by international law or state practice.
Section 3. Except in accordance with the terms of any agreement entered into with the Republic of the Philippines or of any license granted by it or under authority by the Republic of the Philippines, no person shall, in relation to the exclusive economic zone: (a)
explore or exploit any resources;
(b)
carry out any search, excavation or drilling operations:
(c)
conduct any research;
(d) or
construct, maintain or operate any artificial island, off-shore terminal, installation or other structure or device;
(e) perform any act or engage in any activity which is contrary to, or in derogation of, the sovereign rights and jurisdiction herein provided. Nothing herein shall be deemed a prohibition on a citizen of the Philippines, whether natural or juridical, against the (Draft) First Edition, 2011 ( Annex III - 31 )
Notes in Constitutional Law I (Atty. Berne Guerrero) performance of any of the foregoing acts, if allowed under existing laws. Section 4. Other states shall enjoy in the exclusive economic zone freedoms with respect to navigation and overflight, the laying of submarine cables and pipelines, and other internationally lawful uses of the sea relating to navigation and communications. Section 5. (a) The President may authorize the appropriate government office/agency to make and promulgate such rules and regulations which may be deemed proper and necessary for carrying out the purposes of this degree. (b) Any person who shall violate any provision of this decree or of any rule or regulation promulgated hereunder and approved by the President shall be subject to a fine which shall not be less than two thousand pesos (P2,000.00) nor be more than one hundred thousand pesos (100,000.00) or imprisonment ranging from six (6) months to ten (10) years, or both such fine and imprisonment, in the discretion of the court. Vessels and other equipment or articles used in connection therewith shall be subject to seizure and forfeiture. Section 6. This Decree shall take effect thirty (30) days after publication in the Official Gazette. Done in the City of Manila, this 11th day of June, in the year of Our Lord, nineteen hundred and seventy-eight.
(Draft) First Edition, 2011 ( Annex III - 32 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Annex I United Nations Convention on the Law of the Sea of 10 December 1982 For a copy of the original text, see http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm
UNITED NATIONS CONVENTION ON THE LAW OF THE SEA PREAMBLE The States Parties to this Convention, Prompted by the desire to settle, in a spirit of mutual understanding and cooperation, all issues relating to the law of the sea and aware of the historic significance of this Convention as an important contribution to the maintenance of peace, justice and progress for all peoples of the world, Noting that developments since the United Nations Conferences on the Law of the Sea held at Geneva in 1958 and 1960 have accentuated the need for a new and generally acceptable Convention on the law of the sea, Conscious that the problems of ocean space are closely interrelated and need to be considered as a whole, Recognizing the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment, Bearing in mind that the achievement of these goals will contribute to the realization of a just and equitable international economic order which takes into account the interests and needs of mankind as a whole and, in particular, the special interests and needs of developing countries, whether coastal or land-locked, Desiring by this Convention to develop the principles embodied in resolution 2749 (XXV) of 17 December 1970 in which the General Assembly of the United Nations solemnly declared inter alia that the area of the seabed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction, as well as its resources, are the common heritage of mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States, Believing that the codification and progressive development of the law of the sea achieved in this Convention will contribute to the strengthening of peace, security, cooperation and friendly relations among all nations in conformity with the principles of justice and equal rights and will promote the economic and social advancement of all peoples of the world, in accordance with the Purposes and Principles of the United Nations as set forth in the Charter, Affirming that matters not regulated by this Convention continue to be governed by the rules and principles of general international law, Have agreed as follows: PART I. INTRODUCTION Article 1 Use of terms and scope 1.
For the purposes of this Convention: (1)
"Area" means the seabed and ocean floor and subsoil thereof, beyond the limits of national (Draft) First Edition, 2011 ( Annex III - 33 )
Notes in Constitutional Law I (Atty. Berne Guerrero) jurisdiction; (2)
"Authority" means the International Seabed Authority;
(3) Area;
"activities in the Area" means all activities of exploration for, and exploitation of, the resources of the
(4) "pollution of the marine environment" means the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities; (5)
(a)
"dumping" means: (i) any deliberate disposal of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea; (ii) sea;
(b)
any deliberate disposal of vessels, aircraft, platforms or other man-made structures at
"dumping" does not include: (i) the disposal of wastes or other matter incidental to, or derived from the normal operations of vessels, aircraft, platforms or other man-made structures at sea and their equipment, other than wastes or other matter transported by or to vessels, aircraft, platforms or other man-made structures at sea, operating for the purpose of disposal of such matter or derived from the treatment of such wastes or other matter on such vessels, aircraft, platforms or structures; (ii) placement of matter for a purpose other than the mere disposal thereof, provided that such placement is not contrary to the aims of this Convention.
2.
(1) "States Parties" means States which have consented to be bound by this Convention and for which this Convention is in force. (2) This Convention applies mutatis mutandis to the entities referred to in Article 305, paragraph l(b), (c), (d), (e) and (f), which become Parties to this Convention in accordance with the conditions relevant to each, and to that extent "States Parties" refers to those entities. PART II. TERRITORIAL SEA AND CONTIGUOUS ZONE SECTION 1. GENERAL PROVISIONS Article 2 Legal status of the territorial sea, of the air space over the territorial sea and of its bed and subsoil
1. The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. 2.
This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.
3.
The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international (Draft) First Edition, 2011 ( Annex III - 34 )
Notes in Constitutional Law I (Atty. Berne Guerrero) law. SECTION 2. LIMITS OF THE TERRITORIAL SEA Article 3 Breadth of the territorial sea Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention. Article 4 Outer limit of the territorial sea The outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea. Article 5 Normal baseline Except where otherwise provided in this Convention, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State. Article 6 Reefs In the case of islands situated on atolls or of islands having fringing reefs, the baseline for measuring the breadth of the territorial sea is the seaward low-water line of the reef, as shown by the appropriate symbol on charts officially recognized by the coastal State. Article 7 Straight baselines 1. In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured. 2. Where because of the presence of a delta and other natural conditions the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the low-water line and, notwithstanding subsequent regression of the low-water line, the straight baselines shall remain effective until changed by the coastal State in accordance with this Convention. 3. The drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters. 4. Straight baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them or except in instances where the drawing of baselines to and from such elevations has received general international recognition. 5. Where the method of straight baselines is applicable under paragraph 1, account may be taken, in determining particular baselines, of economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by long usage. 6. The system of straight baselines may not be applied by a State in such a manner as to cut off the territorial sea of another State from the high seas or an exclusive economic zone. (Draft) First Edition, 2011 ( Annex III - 35 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
Article 8 Internal waters 1. Except as provided in Part IV, waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State. 2. Where the establishment of a straight baseline in accordance with the method set forth in Article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those waters. Article 9 Mouths of rivers If a river flows directly into the sea, the baseline shall be a straight line across the mouth of the river between points on the low-water line of its banks. Article 10 Bays 1.
This Article relates only to bays the coasts of which belong to a single State.
2. For the purposes of this Convention, a bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation. 3. For the purpose of measurement, the area of an indentation is that lying between the low-water mark around the shore of the indentation and a line joining the low-water mark of its natural entrance points. Where, because of the presence of islands, an indentation has more than one mouth, the semi-circle shall be drawn on a line as long as the sum total of the lengths of the lines across the different mouths. Islands within an indentation shall be included as if they were part of the water area of the indentation. 4. If the distance between the low-water marks of the natural entrance points of a bay does not exceed 24 nautical miles, a closing line may be drawn between these two low-water marks, and the waters enclosed thereby shall be considered as internal waters. 5. Where the distance between the low-water marks of the natural entrance points of a bay exceeds 24 nautical miles, a straight baseline of 24 nautical miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length. 6. The foregoing provisions do not apply to so-called "historic" bays, or in any case where the system of straight baselines provided for in Article 7 is applied. Article 11 Ports For the purpose of delimiting the territorial sea, the outermost permanent harbour works which form an integral part of the harbour system are regarded as forming part of the coast. Off-shore installations and artificial islands shall not be considered as permanent harbour works. Article 12 Roadsteads Roadsteads which are normally used for the loading, unloading and anchoring of ships, and which would otherwise be situated wholly or partly outside the outer limit of the territorial sea, are included in the territorial sea. (Draft) First Edition, 2011 ( Annex III - 36 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
Article 13 Low-tide elevations 1. A low-tide elevation is a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide. Where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea. 2. Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own. Article 14 Combination of methods for determining baselines The coastal State may determine baselines in turn by any of the methods provided for in the foregoing Articles to suit different conditions. Article 15 Delimitation of the territorial sea between States with opposite or adjacent coasts Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith. Article 16 Charts and lists of geographical coordinates 1. The baselines for measuring the breadth of the territorial sea determined in accordance with Articles 7, 9 and 10, or the limits derived therefrom, and the lines of delimitation drawn in accordance with Articles 12 and 15 shall be shown on charts of a scale or scales adequate for ascertaining their position. Alternatively, a list of geographical coordinates of points, specifying the geodetic datum, may be substituted. 2. The coastal State shall give due publicity to such charts or lists of geographical coordinates and shall deposit a copy of each such chart or list with the Secretary-General of the United Nations. SECTION 3. INNOCENT PASSAGE IN THE TERRITORIAL SEA SUBSECTION A. RULES APPLICABLE TO ALL SHIPS Article 17 Right of innocent passage Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea. Article 18 Meaning of passage 1.
Passage means navigation through the territorial sea for the purpose of: (a)
traversing that sea without entering internal waters or calling at a roadstead or port facility outside (Draft) First Edition, 2011 ( Annex III - 37 )
Notes in Constitutional Law I (Atty. Berne Guerrero) internal waters; or (b)
proceeding to or from internal waters or a call at such roadstead or port facility.
2. Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress. Article 19 Meaning of innocent passage 1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law. 2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities: (a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations; (b)
any exercise or practice with weapons of any kind;
(c)
any act aimed at collecting information to the prejudice of the defence or security of the coastal State;
(d)
any act of propaganda aimed at affecting the defence or security of the coastal State;
(e)
the launching, landing or taking on board of any aircraft;
(f)
the launching, landing or taking on board of any military device;
(g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State; (h)
any act of wilful and serious pollution contrary to this Convention;
(i)
any fishing activities;
(j)
the carrying out of research or survey activities;
(k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State; (l)
any other activity not having a direct bearing on passage. Article 20 Submarines and other underwater vehicles
In the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and to show their flag. Article 21 Laws and regulations of the coastal State relating to innocent passage 1. The coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all or any of the (Draft) First Edition, 2011 ( Annex III - 38 )
Notes in Constitutional Law I (Atty. Berne Guerrero) following: (a)
the safety of navigation and the regulation of maritime traffic;
(b)
the protection of navigational aids and facilities and other facilities or installations;
(c)
the protection of cables and pipelines;
(d)
the conservation of the living resources of the sea;
(e)
the prevention of infringement of the fisheries laws and regulations of the coastal State;
(f) the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof; (g)
marine scientific research and hydrographic surveys;
(h) the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State. 2. Such laws and regulations shall not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards. 3.
The coastal State shall give due publicity to all such laws and regulations.
4. Foreign ships exercising the right of innocent passage through the territorial sea shall comply with all such laws and regulations and all generally accepted international regulations relating to the prevention of collisions at sea. Article 22 Sea lanes and traffic separation schemes in the territorial sea 1. The coastal State may, where necessary having regard to the safety of navigation, require foreign ships exercising the right of innocent passage through its territorial sea to use such sea lanes and traffic separation schemes as it may designate or prescribe for the regulation of the passage of ships. 2. In particular, tankers, nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances or materials may be required to confine their passage to such sea lanes. 3. In the designation of sea lanes and the prescription of traffic separation schemes under this Article , the coastal State shall take into account: (a)
the recommendations of the competent international organization;
(b)
any channels customarily used for international navigation;
(c)
the special characteristics of particular ships and channels; and
(d)
the density of traffic.
4. The coastal State shall clearly indicate such sea lanes and traffic separation schemes on charts to which due publicity shall be given. Article 23 Foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances
(Draft) First Edition, 2011 ( Annex III - 39 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances shall, when exercising the right of innocent passage through the territorial sea, carry documents and observe special precautionary measures established for such ships by international agreements. Article 24 Duties of the coastal State 1. The coastal State shall not hamper the innocent passage of foreign ships through the territorial sea except in accordance with this Convention. In particular, in the application of this Convention or of any laws or regulations adopted in conformity with this Convention, the coastal State shall not: (a) impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage; or (b) discriminate in form or in fact against the ships of any State or against ships carrying cargoes to, from or on behalf of any State. 2. The coastal State shall give appropriate publicity to any danger to navigation, of which it has knowledge, within its territorial sea. Article 25 Rights of protection of the coastal State 1.
The coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent.
2. In the case of ships proceeding to internal waters or a call at a port facility outside internal waters, the coastal State also has the right to take the necessary steps to prevent any breach of the conditions to which admission of those ships to internal waters or such a call is subject. 3. The coastal State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security, including weapons exercises. Such suspension shall take effect only after having been duly published. Article 26 Charges which may be levied upon foreign ships 1.
No charge may be levied upon foreign ships by reason only of their passage through the territorial sea.
2. Charges may be levied upon a foreign ship passing through the territorial sea as payment only for specific services rendered to the ship. These charges shall be levied without discrimination. SUBSECTION B. RULES APPLICABLE TO MERCHANT SHIPS AND GOVERNMENT SHIPS OPERATED FOR COMMERCIAL PURPOSES Article 27 Criminal jurisdiction on board a foreign ship 1. The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases: (a)
if the consequences of the crime extend to the coastal State;
(b)
if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea;
(Draft) First Edition, 2011 ( Annex III - 40 )
Notes in Constitutional Law I (Atty. Berne Guerrero) (c) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or (d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances. 2. The above provisions do not affect the right of the coastal State to take any steps authorized by its laws for the purpose of an arrest or investigation on board a foreign ship passing through the territorial sea after leaving internal waters. 3. In the cases provided for in paragraphs 1 and 2, the coastal State shall, if the master so requests, notify a diplomatic agent or consular officer of the flag State before taking any steps, and shall facilitate contact between such agent or officer and the ship's crew. In cases of emergency this notification may be communicated while the measures are being taken. 4. In considering whether or in what manner an arrest should be made, the local authorities shall have due regard to the interests of navigation. 5. Except as provided in Part XII or with respect to violations of laws and regulations adopted in accordance with Part V, the coastal State may not take any steps on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed before the ship entered the territorial sea, if the ship, proceeding from a foreign port, is only passing through the territorial sea without entering internal waters. Article 28 Civil jurisdiction in relation to foreign ships 1. The coastal State should not stop or divert a foreign ship passing through the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board the ship. 2. The coastal State may not levy execution against or arrest the ship for the purpose of any civil proceedings, save only in respect of obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through the waters of the coastal State. 3. Paragraph 2 is without prejudice to the right of the coastal State, in accordance with its laws, to levy execution against or to arrest, for the purpose of any civil proceedings, a foreign ship lying in the territorial sea, or passing through the territorial sea after leaving internal waters. SUBSECTION C. RULES APPLICABLE TO WARSHIPS AND OTHER GOVERNMENT SHIPS OPERATED FOR NONCOMMERCIAL PURPOSES Article 29 Definition of warships For the purposes of this Convention, "warship" means a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline. Article 30 Non-compliance by warships with the laws and regulations of the coastal State If any warship does not comply with the laws and regulations of the coastal State concerning passage through the territorial sea and disregards any request for compliance therewith which is made to it, the coastal State may require it to leave the territorial sea immediately.
(Draft) First Edition, 2011 ( Annex III - 41 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Article 31 Responsibility of the flag State for damage caused by a warship or other government ship operated for non-commercial purposes The flag State shall bear international responsibility for any loss or damage to the coastal State resulting from the noncompliance by a warship or other government ship operated for non-commercial purposes with the laws and regulations of the coastal State concerning passage through the territorial sea or with the provisions of this Convention or other rules of international law. Article 32 Immunities of warships and other government ships operated for non-commercial purposes With such exceptions as are contained in subsection A and in Articles 30 and 31, nothing in this Convention affects the immunities of warships and other government ships operated for non-commercial purposes. SECTION 4. CONTIGUOUS ZONE Article 33 Contiguous zone 1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; (b)
punish infringement of the above laws and regulations committed within its territory or territorial sea.
2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. PART III. STRAITS USED FOR INTERNATIONAL NAVIGATION SECTION 1. GENERAL PROVISIONS Article 34 Legal status of waters forming straits used for international navigation 1. The regime of passage through straits used for international navigation established in this Part shall not in other respects affect the legal status of the waters forming such straits or the exercise by the States bordering the straits of their sovereignty or jurisdiction over such waters and their air space, bed and subsoil. 2. The sovereignty or jurisdiction of the States bordering the straits is exercised subject to this Part and to other rules of international law. Article 35 Scope of this Part Nothing in this Part affects: (a) any areas of internal waters within a strait, except where the establishment of a straight baseline in accordance with the method set forth in Article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such; (Draft) First Edition, 2011 ( Annex III - 42 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
(b) the legal status of the waters beyond the territorial seas of States bordering straits as exclusive economic zones or high seas; or (c) the legal regime in straits in which passage is regulated in whole or in part by long-standing international conventions in force specifically relating to such straits. Article 36 High seas routes or routes through exclusive economic zones through straits used for international navigation This Part does not apply to a strait used for international navigation if there exists through the strait a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics; in such routes, the other relevant Parts of this Convention, including the provisions regarding the freedoms of navigation and overflight, apply. SECTION 2. TRANSIT PASSAGE Article 37 Scope of this section This section applies to straits which are used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. Article 38 Right of transit passage 1. In straits referred to in Article 37, all ships and aircraft enjoy the right of transit passage, which shall not be impeded; except that, if the strait is formed by an island of a State bordering the strait and its mainland, transit passage shall not apply if there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics. 2. Transit passage means the exercise in accordance with this Part of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. However, the requirement of continuous and expeditious transit does not preclude passage through the strait for the purpose of entering, leaving or returning from a State bordering the strait, subject to the conditions of entry to that State. 3. Any activity which is not an exercise of the right of transit passage through a strait remains subject to the other applicable provisions of this Convention. Article 39 Duties of ships and aircraft during transit passage 1.
Ships and aircraft, while exercising the right of transit passage, shall: (a)
proceed without delay through or over the strait;
(b) refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of States bordering the strait, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations; (c) refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress; (d)
comply with other relevant provisions of this Part. (Draft) First Edition, 2011 ( Annex III - 43 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
2.
Ships in transit passage shall: (a) comply with generally accepted international regulations, procedures and practices for safety at sea, including the International Regulations for Preventing Collisions at Sea; (b) comply with generally accepted international regulations, procedures and practices for the prevention, reduction and control of pollution from ships.
3.
Aircraft in transit passage shall: (a) observe the Rules of the Air established by the International Civil Aviation Organization as they apply to civil aircraft; state aircraft will normally comply with such safety measures and will at all times operate with due regard for the safety of navigation; (b) at all times monitor the radio frequency assigned by the competent internationally designated air traffic control authority or the appropriate international distress radio frequency. Article 40 Research and survey activities
During transit passage, foreign ships, including marine scientific research and hydrographic survey ships, may not carry out any research or survey activities without the prior authorization of the States bordering straits. Article 41 Sea lanes and traffic separation schemes in straits used for international navigation 1. In conformity with this Part, States bordering straits may designate sea lanes and prescribe traffic separation schemes for navigation in straits where necessary to promote the safe passage of ships. 2. Such States may, when circumstances require, and after giving due publicity thereto, substitute other sea lanes or traffic separation schemes for any sea lanes or traffic separation schemes previously designated or prescribed by them. 3.
Such sea lanes and traffic separation schemes shall conform to generally accepted international regulations.
4. Before designating or substituting sea lanes or prescribing or substituting traffic separation schemes, States bordering straits shall refer proposals to the competent international organization with a view to their adoption. The organization may adopt only such sea lanes and traffic separation schemes as may be agreed with the States bordering the straits, after which the States may designate, prescribe or substitute them. 5. In respect of a strait where sea lanes or traffic separation schemes through the waters of two or more States bordering the strait are being proposed, the States concerned shall cooperate in formulating proposals in consultation with the competent international organization. 6. States bordering straits shall clearly indicate all sea lanes and traffic separation schemes designated or prescribed by them on charts to which due publicity shall be given. 7. Ships in transit passage shall respect applicable sea lanes and traffic separation schemes established in accordance with this Article . Article 42 Laws and regulations of States bordering straits relating to transit passage 1. Subject to the provisions of this section, States bordering straits may adopt laws and regulations relating to transit passage through straits, in respect of all or any of the following:
(Draft) First Edition, 2011 ( Annex III - 44 )
Notes in Constitutional Law I (Atty. Berne Guerrero) (a)
the safety of navigation and the regulation of maritime traffic, as provided in Article 41;
(b) the prevention, reduction and control of pollution, by giving effect to applicable international regulations regarding the discharge of oil, oily wastes and other noxious substances in the strait; (c)
with respect to fishing vessels, the prevention of fishing, including the stowage of fishing gear;
(d) the loading or unloading of any commodity, currency or person in contravention of the customs, fiscal, immigration or sanitary laws and regulations of States bordering straits. 2. Such laws and regulations shall not discriminate in form or in fact among foreign ships or in their application have the practical effect of denying, hampering or impairing the right of transit passage as defined in this section. 3.
States bordering straits shall give due publicity to all such laws and regulations.
4.
Foreign ships exercising the right of transit passage shall comply with such laws and regulations.
5. The flag State of a ship or the State of registry of an aircraft entitled to sovereign immunity which acts in a manner contrary to such laws and regulations or other provisions of this Part shall bear international responsibility for any loss or damage which results to States bordering straits. Article 43 Navigational and safety aids and other improvements and the prevention, reduction and control of pollution User States and States bordering a strait should by agreement cooperate: (a) in the establishment and maintenance in a strait of necessary navigational and safety aids or other improvements in aid of international navigation; and (b)
for the prevention, reduction and control of pollution from ships. Article 44 Duties of States bordering straits
States bordering straits shall not hamper transit passage and shall give appropriate publicity to any danger to navigation or overflight within or over the strait of which they have knowledge. There shall be no suspension of transit passage. SECTION 3. INNOCENT PASSAGE Article 45 Innocent passage 1. The regime of innocent passage, in accordance with Part II, section 3, shall apply in straits used for international navigation:
2.
(a)
excluded from the application of the regime of transit passage under Article 38, paragraph 1; or
(b)
between a part of the high seas or an exclusive economic zone and the territorial sea of a foreign State.
There shall be no suspension of innocent passage through such straits. PART IV. ARCHIPELAGIC STATES Article 46 (Draft) First Edition, 2011 ( Annex III - 45 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Use of terms For the purposes of this Convention: (a) "archipelagic State" means a State constituted wholly by one or more archipelagos and may include other islands; (b) "archipelago" means a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such. Article 47 Archipelagic baselines 1. An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. 2. The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles. 3. The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago. 4. Such baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them or where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the nearest island. 5. The system of such baselines shall not be applied by an archipelagic State in such a manner as to cut off from the high seas or the exclusive economic zone the territorial sea of another State. 6. If a part of the archipelagic waters of an archipelagic State lies between two parts of an immediately adjacent neighbouring State, existing rights and all other legitimate interests which the latter State has traditionally exercised in such waters and all rights stipulated by agreement between those States shall continue and be respected. 7. For the purpose of computing the ratio of water to land under paragraph l, land areas may include waters lying within the fringing reefs of islands and atolls, including that part of a steep-sided oceanic plateau which is enclosed or nearly enclosed by a chain of limestone islands and drying reefs lying on the perimeter of the plateau. 8. The baselines drawn in accordance with this Article shall be shown on charts of a scale or scales adequate for ascertaining their position. Alternatively, lists of geographical coordinates of points, specifying the geodetic datum, may be substituted. 9. The archipelagic State shall give due publicity to such charts or lists of geographical coordinates and shall deposit a copy of each such chart or list with the Secretary-General of the United Nations. Article 48 Measurement of the breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf The breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf shall be measured from archipelagic baselines drawn in accordance with Article 47. Article 49 Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed and subsoil
(Draft) First Edition, 2011 ( Annex III - 46 )
Notes in Constitutional Law I (Atty. Berne Guerrero) 1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines drawn in accordance with Article 47, described as archipelagic waters, regardless of their depth or distance from the coast. 2. This sovereignty extends to the air space over the archipelagic waters, as well as to their bed and subsoil, and the resources contained therein. 3.
This sovereignty is exercised subject to this Part.
4. The regime of archipelagic sea lanes passage established in this Part shall not in other respects affect the status of the archipelagic waters, including the sea lanes, or the exercise by the archipelagic State of its sovereignty over such waters and their air space, bed and subsoil, and the resources contained therein. Article 50 Delimitation of internal waters Within its archipelagic waters, the archipelagic State may draw closing lines for the delimitation of internal waters, in accordance with Articles 9, 10 and 11. Article 51 Existing agreements, traditional fishing rights and existing submarine cables 1. Without prejudice to Article 49, an archipelagic State shall respect existing agreements with other States and shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighbouring States in certain areas falling within archipelagic waters. The terms and conditions for the exercise of such rights and activities, including the nature, the extent and the areas to which they apply, shall, at the request of any of the States concerned, be regulated by bilateral agreements between them. Such rights shall not be transferred to or shared with third States or their nationals. 2. An archipelagic State shall respect existing submarine cables laid by other States and passing through its waters without making a landfall. An archipelagic State shall permit the maintenance and replacement of such cables upon receiving due notice of their location and the intention to repair or replace them. Article 52 Right of innocent passage 1. Subject to Article 53 and without prejudice to Article 50, ships of all States enjoy the right of innocent passage through archipelagic waters, in accordance with Part II, section 3. 2. The archipelagic State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its archipelagic waters the innocent passage of foreign ships if such suspension is essential for the protection of its security. Such suspension shall take effect only after having been duly published. Article 53 Right of archipelagic sea lanes passage 1. An archipelagic State may designate sea lanes and air routes thereabove, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea. 2.
All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes.
3. Archipelagic sea lanes passage means the exercise in accordance with this Convention of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. 4.
Such sea lanes and air routes shall traverse the archipelagic waters and the adjacent territorial sea and shall (Draft) First Edition, 2011 ( Annex III - 47 )
Notes in Constitutional Law I (Atty. Berne Guerrero) include all normal passage routes used as routes for international navigation or overflight through or over archipelagic waters and, within such routes, so far as ships are concerned, all normal navigational channels, provided that duplication of routes of similar convenience between the same entry and exit points shall not be necessary. 5. Such sea lanes and air routes shall be defined by a series of continuous axis lines from the entry points of passage routes to the exit points. Ships and aircraft in archipelagic sea lanes passage shall not deviate more than 25 nautical miles to either side of such axis lines during passage, provided that such ships and aircraft shall not navigate closer to the coasts than 10 per cent of the distance between the nearest points on islands bordering the sea lane. 6. An archipelagic State which designates sea lanes under this Article may also prescribe traffic separation schemes for the safe passage of ships through narrow channels in such sea lanes. 7. An archipelagic State may, when circumstances require, after giving due publicity thereto, substitute other sea lanes or traffic separation schemes for any sea lanes or traffic separation schemes previously designated or prescribed by it. 8.
Such sea lanes and traffic separation schemes shall conform to generally accepted international regulations.
9. In designating or substituting sea lanes or prescribing or substituting traffic separation schemes, an archipelagic State shall refer proposals to the competent international organization with a view to their adoption. The organization may adopt only such sea lanes and traffic separation schemes as may be agreed with the archipelagic State, after which the archipelagic State may designate, prescribe or substitute them. 10. The archipelagic State shall clearly indicate the axis of the sea lanes and the traffic separation schemes designated or prescribed by it on charts to which due publicity shall be given. 11. Ships in archipelagic sea lanes passage shall respect applicable sea lanes and traffic separation schemes established in accordance with this Article . 12. If an archipelagic State does not designate sea lanes or air routes, the right of archipelagic sea lanes passage may be exercised through the routes normally used for international navigation. Article 54 Duties of ships and aircraft during their passage, research and survey activities, duties of the archipelagic State and laws and regulations of the archipelagic State relating to archipelagic sea lanes passage Articles 39, 40, 42 and 44 apply mutatis mutandis to archipelagic sea lanes passage. PART V. EXCLUSIVE ECONOMIC ZONE Article 55 Specific legal regime of the exclusive economic zone The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention. Article 56 Rights, jurisdiction and duties of the coastal State in the exclusive economic zone 1.
In the exclusive economic zone, the coastal State has: (a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the (Draft) First Edition, 2011 ( Annex III - 48 )
Notes in Constitutional Law I (Atty. Berne Guerrero) production of energy from the water, currents and winds; (b)
(c)
jurisdiction as provided for in the relevant provisions of this Convention with regard to: (i)
the establishment and use of artificial islands, installations and structures;
(ii)
marine scientific research;
(iii)
the protection and preservation of the marine environment;
other rights and duties provided for in this Convention.
2. In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention. 3. The rights set out in this Article with respect to the seabed and subsoil shall be exercised in accordance with Part VI. Article 57 Breadth of the exclusive economic zone The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. Article 58 Rights and duties of other States in the exclusive economic zone 1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in Article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention. 2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part. 3. In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part. Article 59 Basis for the resolution of conflicts regarding the attribution of rights and jurisdiction in the exclusive economic zone In cases where this Convention does not attribute rights or jurisdiction to the coastal State or to other States within the exclusive economic zone, and a conflict arises between the interests of the coastal State and any other State or States, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole. Article 60 Artificial islands, installations and structures in the exclusive economic zone 1. In the exclusive economic zone, the coastal State shall have the exclusive right to construct and to authorize and regulate the construction, operation and use of: (Draft) First Edition, 2011 ( Annex III - 49 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
(a)
artificial islands;
(b)
installations and structures for the purposes provided for in Article 56 and other economic purposes;
(c) installations and structures which may interfere with the exercise of the rights of the coastal State in the zone. 2. The coastal State shall have exclusive jurisdiction over such artificial islands, installations and structures, including jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations. 3. Due notice must be given of the construction of such artificial islands, installations or structures, and permanent means for giving warning of their presence must be maintained. Any installations or structures which are abandoned or disused shall be removed to ensure safety of navigation, taking into account any generally accepted international standards established in this regard by the competent international organization. Such removal shall also have due regard to fishing, the protection of the marine environment and the rights and duties of other States. Appropriate publicity shall be given to the depth, position and dimensions of any installations or structures not entirely removed. 4. The coastal State may, where necessary, establish reasonable safety zones around such artificial islands, installations and structures in which it may take appropriate measures to ensure the safety both of navigation and of the artificial islands, installations and structures. 5. The breadth of the safety zones shall be determined by the coastal State, taking into account applicable international standards. Such zones shall be designed to ensure that they are reasonably related to the nature and function of the artificial islands, installations or structures, and shall not exceed a distance of 500 metres around them, measured from each point of their outer edge, except as authorized by generally accepted international standards or as recommended by the competent international organization. Due notice shall be given of the extent of safety zones. 6. All ships must respect these safety zones and shall comply with generally accepted international standards regarding navigation in the vicinity of artificial islands, installations, structures and safety zones. 7. Artificial islands, installations and structures and the safety zones around them may not be established where interference may be caused to the use of recognized sea lanes essential to international navigation. 8. Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf. Article 61 Conservation of the living resources 1.
The coastal State shall determine the allowable catch of the living resources in its exclusive economic zone.
2. The coastal State, taking into account the best scientific evidence available to it, shall ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation. As appropriate, the coastal State and competent international organizations, whether subregional, regional or global, shall cooperate to this end. 3. Such measures shall also be designed to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the economic needs of coastal fishing communities and the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global. 4. In taking such measures the coastal State shall take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent (Draft) First Edition, 2011 ( Annex III - 50 )
Notes in Constitutional Law I (Atty. Berne Guerrero) species above levels at which their reproduction may become seriously threatened. 5. Available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organizations, whether subregional, regional or global, where appropriate and with participation by all States concerned, including States whose nationals are allowed to fish in the exclusive economic zone. Article 62 Utilization of the living resources 1. The coastal State shall promote the objective of optimum utilization of the living resources in the exclusive economic zone without prejudice to Article 61. 2. The coastal State shall determine its capacity to harvest the living resources of the exclusive economic zone. Where the coastal State does not have the capacity to harvest the entire allowable catch, it shall, through agreements or other arrangements and pursuant to the terms, conditions, laws and regulations referred to in paragraph 4, give other States access to the surplus of the allowable catch, having particular regard to the provisions of Articles 69 and 70, especially in relation to the developing States mentioned therein. 3. In giving access to other States to its exclusive economic zone under this Article , the coastal State shall take into account all relevant factors, including, inter alia, the significance of the living resources of the area to the economy of the coastal State concerned and its other national interests, the provisions of Articles 69 and 70, the requirements of developing States in the subregion or region in harvesting part of the surplus and the need to minimize economic dislocation in States whose nationals have habitually fished in the zone or which have made substantial efforts in research and identification of stocks. 4. Nationals of other States fishing in the exclusive economic zone shall comply with the conservation measures and with the other terms and conditions established in the laws and regulations of the coastal State. These laws and regulations shall be consistent with this Convention and may relate, inter alia, to the following: (a) licensing of fishermen, fishing vessels and equipment, including payment of fees and other forms of remuneration, which, in the case of developing coastal States, may consist of adequate compensation in the field of financing, equipment and technology relating to the fishing industry; (b) determining the species which may be caught, and fixing quotas of catch, whether in relation to particular stocks or groups of stocks or catch per vessel over a period of time or to the catch by nationals of any State during a specified period; (c) regulating seasons and areas of fishing, the types, sizes and amount of gear, and the types, sizes and number of fishing vessels that may be used; (d)
fixing the age and size of fish and other species that may be caught;
(e) specifying information required of fishing vessels, including catch and effort statistics and vessel position reports; (f) requiring, under the authorization and control of the coastal State, the conduct of specified fisheries research programmes and regulating the conduct of such research, including the sampling of catches, disposition of samples and reporting of associated scientific data; (g)
the placing of observers or trainees on board such vessels by the coastal State;
(h)
the landing of all or any part of the catch by such vessels in the ports of the coastal State;
(i)
terms and conditions relating to joint ventures or other cooperative arrangements;
(Draft) First Edition, 2011 ( Annex III - 51 )
Notes in Constitutional Law I (Atty. Berne Guerrero) (j) requirements for the training of personnel and the transfer of fisheries technology, including enhancement of the coastal State's capability of undertaking fisheries research; (k) 5.
enforcement procedures.
Coastal States shall give due notice of conservation and management laws and regulations.
Article 63 Stocks occurring within the exclusive economic zones of two or more coastal States or both within the exclusive economic zone and in an area beyond and adjacent to it 1. Where the same stock or stocks of associated species occur within the exclusive economic zones of two or more coastal States, these States shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary to coordinate and ensure the conservation and development of such stocks without prejudice to the other provisions of this Part. 2. Where the same stock or stocks of associated species occur both within the exclusive economic zone and in an area beyond and adjacent to the zone, the coastal State and the States fishing for such stocks in the adjacent area shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area. Article 64 Highly migratory species 1. The coastal State and other States whose nationals fish in the region for the highly migratory species listed in Annex I shall cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone. In regions for which no appropriate international organization exists, the coastal State and other States whose nationals harvest these species in the region shall cooperate to establish such an organization and participate in its work. 2.
The provisions of paragraph 1 apply in addition to the other provisions of this Part. Article 65 Marine mammals
Nothing in this Part restricts the right of a coastal State or the competence of an international organization, as appropriate, to prohibit, limit or regulate the exploitation of marine mammals more strictly than provided for in this Part. States shall cooperate with a view to the conservation of marine mammals and in the case of cetaceans shall in particular work through the appropriate international organizations for their conservation, management and study. Article 66 Anadromous stocks 1. States in whose rivers anadromous stocks originate shall have the primary interest in and responsibility for such stocks. 2. The State of origin of anadromous stocks shall ensure their conservation by the establishment of appropriate regulatory measures for fishing in all waters landward of the outer limits of its exclusive economic zone and for fishing provided for in paragraph 3(b). The State of origin may, after consultations with the other States referred to in paragraphs 3 and 4 fishing these stocks, establish total allowable catches for stocks originating in its rivers. 3.
(a) Fisheries for anadromous stocks shall be conducted only in waters landward of the outer limits of exclusive economic zones, except in cases where this provision would result in economic dislocation for a State other than the State of origin. With respect to such fishing beyond the outer limits of the exclusive economic zone, States concerned shall maintain consultations with a view to achieving agreement on terms and conditions (Draft) First Edition, 2011 ( Annex III - 52 )
Notes in Constitutional Law I (Atty. Berne Guerrero) of such fishing giving due regard to the conservation requirements and the needs of the State of origin in respect of these stocks. (b) The State of origin shall cooperate in minimizing economic dislocation in such other States fishing these stocks, taking into account the normal catch and the mode of operations of such States, and all the areas in which such fishing has occurred. (c) States referred to in subparagraph (b), participating by agreement with the State of origin in measures to renew anadromous stocks, particularly by expenditures for that purpose, shall be given special consideration by the State of origin in the harvesting of stocks originating in its rivers. (d) Enforcement of regulations regarding anadromous stocks beyond the exclusive economic zone shall be by agreement between the State of origin and the other States concerned. 4. In cases where anadromous stocks migrate into or through the waters landward of the outer limits of the exclusive economic zone of a State other than the State of origin, such State shall cooperate with the State of origin with regard to the conservation and management of such stocks. 5. The State of origin of anadromous stocks and other States fishing these stocks shall make arrangements for the implementation of the provisions of this Article , where appropriate, through regional organizations. Article 67 Catadromous species 1. A coastal State in whose waters catadromous species spend the greater part of their life cycle shall have responsibility for the management of these species and shall ensure the ingress and egress of migrating fish. 2. Harvesting of catadromous species shall be conducted only in waters landward of the outer limits of exclusive economic zones. When conducted in exclusive economic zones, harvesting shall be subject to this Article and the other provisions of this Convention concerning fishing in these zones. 3. In cases where catadromous fish migrate through the exclusive economic zone of another State, whether as juvenile or maturing fish, the management, including harvesting, of such fish shall be regulated by agreement between the State mentioned in paragraph 1 and the other State concerned. Such agreement shall ensure the rational management of the species and take into account the responsibilities of the State mentioned in paragraph 1 for the maintenance of these species. Article 68 Sedentary species This Part does not apply to sedentary species as defined in Article 77, paragraph 4. Article 69 Right of land-locked States 1. Land-locked States shall have the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zones of coastal States of the same subregion or region, taking into account the relevant economic and geographical circumstances of all the States concerned and in conformity with the provisions of this Article and of Articles 61 and 62. 2. The terms and modalities of such participation shall be established by the States concerned through bilateral, subregional or regional agreements taking into account, inter alia: (a)
the need to avoid effects detrimental to fishing communities or fishing industries of the coastal State;
(b)
the extent to which the land-locked State, in accordance with the provisions of this Article , is (Draft) First Edition, 2011 ( Annex III - 53 )
Notes in Constitutional Law I (Atty. Berne Guerrero) participating or is entitled to participate under existing bilateral, subregional or regional agreements in the exploitation of living resources of the exclusive economic zones of other coastal States; (c) the extent to which other land-locked States and geographically disadvantaged States are participating in the exploitation of the living resources of the exclusive economic zone of the coastal State and the consequent need to avoid a particular burden for any single coastal State or a part of it; (d)
the nutritional needs of the populations of the respective States.
3. When the harvesting capacity of a coastal State approaches a point which would enable it to harvest the entire allowable catch of the living resources in its exclusive economic zone, the coastal State and other States concerned shall cooperate in the establishment of equitable arrangements on a bilateral, subregional or regional basis to allow for participation of developing land-locked States of the same subregion or region in the exploitation of the living resources of the exclusive economic zones of coastal States of the subregion or region, as may be appropriate in the circumstances and on terms satisfactory to all parties. In the implementation of this provision the factors mentioned in paragraph 2 shall also be taken into account. 4. Developed land-locked States shall, under the provisions of this Article , be entitled to participate in the exploitation of living resources only in the exclusive economic zones of developed coastal States of the same subregion or region having regard to the extent to which the coastal State, in giving access to other States to the living resources of its exclusive economic zone, has taken into account the need to minimize detrimental effects on fishing communities and economic dislocation in States whose nationals have habitually fished in the zone. 5. The above provisions are without prejudice to arrangements agreed upon in subregions or regions where the coastal States may grant to land-locked States of the same subregion or region equal or preferential rights for the exploitation of the living resources in the exclusive economic zones. Article 70 Right of geographically disadvantaged States 1. Geographically disadvantaged States shall have the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zones of coastal States of the same subregion or region, taking into account the relevant economic and geographical circumstances of all the States concerned and in conformity with the provisions of this Article and of Articles 61 and 62. 2. For the purposes of this Part, "geographically disadvantaged States" means coastal States, including States bordering enclosed or semi-enclosed seas, whose geographical situation makes them dependent upon the exploitation of the living resources of the exclusive economic zones of other States in the subregion or region for adequate supplies of fish for the nutritional purposes of their populations or parts thereof, and coastal States which can claim no exclusive economic zones of their own. 3. The terms and modalities of such participation shall be established by the States concerned through bilateral, subregional or regional agreements taking into account, inter alia: (a)
the need to avoid effects detrimental to fishing communities or fishing industries of the coastal State;
(b) the extent to which the geographically disadvantaged State, in accordance with the provisions of this Article , is participating or is entitled to participate under existing bilateral, subregional or regional agreements in the exploitation of living resources of the exclusive economic zones of other coastal States; (c) the extent to which other geographically disadvantaged States and land-locked States are participating in the exploitation of the living resources of the exclusive economic zone of the coastal State and the consequent need to avoid a particular burden for any single coastal State or a part of it; (d)
the nutritional needs of the populations of the respective States.
(Draft) First Edition, 2011 ( Annex III - 54 )
Notes in Constitutional Law I (Atty. Berne Guerrero) 4. When the harvesting capacity of a coastal State approaches a point which would enable it to harvest the entire allowable catch of the living resources in its exclusive economic zone, the coastal State and other States concerned shall cooperate in the establishment of equitable arrangements on a bilateral, subregional or regional basis to allow for participation of developing geographically disadvantaged States of the same subregion or region in the exploitation of the living resources of the exclusive economic zones of coastal States of the subregion or region, as may be appropriate in the circumstances and on terms satisfactory to all parties. In the implementation of this provision the factors mentioned in paragraph 3 shall also be taken into account. 5. Developed geographically disadvantaged States shall, under the provisions of this Article , be entitled to participate in the exploitation of living resources only in the exclusive economic zones of developed coastal States of the same subregion or region having regard to the extent to which the coastal State, in giving access to other States to the living resources of its exclusive economic zone, has taken into account the need to minimize detrimental effects on fishing communities and economic dislocation in States whose nationals have habitually fished in the zone. 6. The above provisions are without prejudice to arrangements agreed upon in subregions or regions where the coastal States may grant to geographically disadvantaged States of the same subregion or region equal or preferential rights for the exploitation of the living resources in the exclusive economic zones. Article 71 Non-applicability of Articles 69 and 70 The provisions of Articles 69 and 70 do not apply in the case of a coastal State whose economy is overwhelmingly dependent on the exploitation of the living resources of its exclusive economic zone. Article 72 Restrictions on transfer of rights 1. Rights provided under Articles 69 and 70 to exploit living resources shall not be directly or indirectly transferred to third States or their nationals by lease or licence, by establishing joint ventures or in any other manner which has the effect of such transfer unless otherwise agreed by the States concerned. 2. The foregoing provision does not preclude the States concerned from obtaining technical or financial assistance from third States or international organizations in order to facilitate the exercise of the rights pursuant to Articles 69 and 70, provided that it does not have the effect referred to in paragraph 1. Article 73 Enforcement of laws and regulations of the coastal State 1. The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention. 2. Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security. 3. Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment. 4. In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the flag State, through appropriate channels, of the action taken and of any penalties subsequently imposed. Article 74 Delimitation of the exclusive economic zone between States with opposite or adjacent coasts
(Draft) First Edition, 2011 ( Annex III - 55 )
Notes in Constitutional Law I (Atty. Berne Guerrero) 1. The delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution. 2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV. 3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation. 4. Where there is an agreement in force between the States concerned, questions relating to the delimitation of the exclusive economic zone shall be determined in accordance with the provisions of that agreement. Article 75 Charts and lists of geographical coordinates 1. Subject to this Part, the outer limit lines of the exclusive economic zone and the lines of delimitation drawn in accordance with Article 74 shall be shown on charts of a scale or scales adequate for ascertaining their position. Where appropriate, lists of geographical coordinates of points, specifying the geodetic datum, may be substituted for such outer limit lines or lines of delimitation. 2. The coastal State shall give due publicity to such charts or lists of geographical coordinates and shall deposit a copy of each such chart or list with the Secretary-General of the United Nations. PART VI. CONTINENTAL SHELF Article 76 Definition of the continental shelf 1. The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. 2.
The continental shelf of a coastal State shall not extend beyond the limits provided for in paragraphs 4 to 6.
3. The continental margin comprises the submerged prolongation of the land mass of the coastal State, and consists of the seabed and subsoil of the shelf, the slope and the rise. It does not include the deep ocean floor with its oceanic ridges or the subsoil thereof. 4.
(a) For the purposes of this Convention, the coastal State shall establish the outer edge of the continental margin wherever the margin extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by either: (i) a line delineated in accordance with paragraph 7 by reference to the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1 per cent of the shortest distance from such point to the foot of the continental slope; or (ii) a line delineated in accordance with paragraph 7 by reference to fixed points not more than 60 nautical miles from the foot of the continental slope. (b) In the absence of evidence to the contrary, the foot of the continental slope shall be determined as the point of maximum change in the gradient at its base. (Draft) First Edition, 2011 ( Annex III - 56 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
5. The fixed points comprising the line of the outer limits of the continental shelf on the seabed, drawn in accordance with paragraph 4 (a)(i) and (ii), either shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the 2,500 metre isobath, which is a line connecting the depth of 2,500 metres. 6. Notwithstanding the provisions of paragraph 5, on submarine ridges, the outer limit of the continental shelf shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured. This paragraph does not apply to submarine elevations that are natural components of the continental margin, such as its plateaux, rises, caps, banks and spurs. 7. The coastal State shall delineate the outer limits of its continental shelf, where that shelf extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by straight lines not exceeding 60 nautical miles in length, connecting fixed points, defined by coordinates of latitude and longitude. 8. Information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf set up under Annex II on the basis of equitable geographical representation. The Commission shall make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf. The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding. 9. The coastal State shall deposit with the Secretary-General of the United Nations charts and relevant information, including geodetic data, permanently describing the outer limits of its continental shelf. The SecretaryGeneral shall give due publicity thereto. 10. The provisions of this Article are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts. Article 77 Rights of the coastal State over the continental shelf 1. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources. 2. The rights referred to in paragraph 1 are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State. 3. The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation. 4. The natural resources referred to in this Part consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil. Article 78 Legal status of the superjacent waters and air space and the rights and freedoms of other States 1. The rights of the coastal State over the continental shelf do not affect the legal status of the superjacent waters or of the air space above those waters. 2. The exercise of the rights of the coastal State over the continental shelf must not infringe or result in any unjustifiable interference with navigation and other rights and freedoms of other States as provided for in this Convention. (Draft) First Edition, 2011 ( Annex III - 57 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
Article 79 Submarine cables and pipelines on the continental shelf 1. All States are entitled to lay submarine cables and pipelines on the continental shelf, in accordance with the provisions of this Article . 2. Subject to its right to take reasonable measures for the exploration of the continental shelf, the exploitation of its natural resources and the prevention, reduction and control of pollution from pipelines, the coastal State may not impede the laying or maintenance of such cables or pipelines. 3. The delineation of the course for the laying of such pipelines on the continental shelf is subject to the consent of the coastal State. 4. Nothing in this Part affects the right of the coastal State to establish conditions for cables or pipelines entering its territory or territorial sea, or its jurisdiction over cables and pipelines constructed or used in connection with the exploration of its continental shelf or exploitation of its resources or the operations of artificial islands, installations and structures under its jurisdiction. 5. When laying submarine cables or pipelines, States shall have due regard to cables or pipelines already in position. In particular, possibilities of repairing existing cables or pipelines shall not be prejudiced. Article 80 Artificial islands, installations and structures on the continental shelf Article 60 applies mutatis mutandis to artificial islands, installations and structures on the continental shelf. Article 81 Drilling on the continental shelf The coastal State shall have the exclusive right to authorize and regulate drilling on the continental shelf for all purposes. Article 82 Payments and contributions with respect to the exploitation of the continental shelf beyond 200 nautical miles 1. The coastal State shall make payments or contributions in kind in respect of the exploitation of the non-living resources of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. 2. The payments and contributions shall be made annually with respect to all production at a site after the first five years of production at that site. For the sixth year, the rate of payment or contribution shall be 1 per cent of the value or volume of production at the site. The rate shall increase by 1 per cent for each subsequent year until the twelfth year and shall remain at 7 per cent thereafter. Production does not include resources used in connection with exploitation. 3. A developing State which is a net importer of a mineral resource produced from its continental shelf is exempt from making such payments or contributions in respect of that mineral resource. 4. The payments or contributions shall be made through the Authority, which shall distribute them to States Parties to this Convention, on the basis of equitable sharing criteria, taking into account the interests and needs of developing States, particularly the least developed and the land-locked among them. Article 83 Delimitation of the continental shelf between States with opposite or adjacent coasts 1. The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, (Draft) First Edition, 2011 ( Annex III - 58 )
Notes in Constitutional Law I (Atty. Berne Guerrero) in order to achieve an equitable solution. 2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV. 3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation. 4. Where there is an agreement in force between the States concerned, questions relating to the delimitation of the continental shelf shall be determined in accordance with the provisions of that agreement. Article 84 Charts and lists of geographical coordinates 1. Subject to this Part, the outer limit lines of the continental shelf and the lines of delimitation drawn in accordance with Article 83 shall be shown on charts of a scale or scales adequate for ascertaining their position. Where appropriate, lists of geographical coordinates of points, specifying the geodetic datum, may be substituted for such outer limit lines or lines of delimitation. 2. The coastal State shall give due publicity to such charts or lists of geographical coordinates and shall deposit a copy of each such chart or list with the Secretary-General of the United Nations and, in the case of those showing the outer limit lines of the continental shelf, with the Secretary-General of the Authority. Article 85 Tunnelling This Part does not prejudice the right of the coastal State to exploit the subsoil by means of tunnelling, irrespective of the depth of water above the subsoil. PART VII. HIGH SEAS SECTION 1. GENERAL PROVISIONS Article 86 Application of the provisions of this Part The provisions of this Part apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. This Article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accordance with Article 58. Article 87 Freedom of the high seas 1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States: (a)
freedom of navigation;
(b)
freedom of overflight;
(Draft) First Edition, 2011 ( Annex III - 59 )
Notes in Constitutional Law I (Atty. Berne Guerrero) (c)
freedom to lay submarine cables and pipelines, subject to Part VI;
(d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI; (e)
freedom of fishing, subject to the conditions laid down in section 2;
(f)
freedom of scientific research, subject to Parts VI and XIII.
2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area. Article 88 Reservation of the high seas for peaceful purposes The high seas shall be reserved for peaceful purposes. Article 89 Invalidity of claims of sovereignty over the high seas No State may validly purport to subject any part of the high seas to its sovereignty. Article 90 Right of navigation Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas. Article 91 Nationality of ships 1. Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship. 2.
Every State shall issue to ships to which it has granted the right to fly its flag documents to that effect. Article 92 Status of ships
1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry. 2. A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality. Article 93 Ships flying the flag of the United Nations, its specialized agencies and the International Atomic Energy Agency The preceding Articles do not prejudice the question of ships employed on the official service of the United Nations, its specialized agencies or the International Atomic Energy Agency, flying the flag of the organization. Article 94 Duties of the flag State (Draft) First Edition, 2011 ( Annex III - 60 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
1. Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. 2.
In particular every State shall: (a) maintain a register of ships containing the names and particulars of ships flying its flag, except those which are excluded from generally accepted international regulations on account of their small size; and (b) assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship.
3. Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea with regard, inter alia, to: (a)
the construction, equipment and seaworthiness of ships;
(b) the manning of ships, labour conditions and the training of crews, taking into account the applicable international instruments; (c) 4.
the use of signals, the maintenance of communications and the prevention of collisions.
Such measures shall include those necessary to ensure: (a) that each ship, before registration and thereafter at appropriate intervals, is surveyed by a qualified surveyor of ships, and has on board such charts, nautical publications and navigational equipment and instruments as are appropriate for the safe navigation of the ship; (b) that each ship is in the charge of a master and officers who possess appropriate qualifications, in particular in seamanship, navigation, communications and marine engineering, and that the crew is appropriate in qualification and numbers for the type, size, machinery and equipment of the ship; (c) that the master, officers and, to the extent appropriate, the crew are fully conversant with and required to observe the applicable international regulations concerning the safety of life at sea, the prevention of collisions, the prevention, reduction and control of marine pollution, and the maintenance of communications by radio.
5. In taking the measures called for in paragraphs 3 and 4 each State is required to conform to generally accepted international regulations, procedures and practices and to take any steps which may be necessary to secure their observance. 6. A State which has clear grounds to believe that proper jurisdiction and control with respect to a ship have not been exercised may report the facts to the flag State. Upon receiving such a report, the flag State shall investigate the matter and, if appropriate, take any action necessary to remedy the situation. 7. Each State shall cause an inquiry to be held by or before a suitably qualified person or persons into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another State or serious damage to ships or installations of another State or to the marine environment. The flag State and the other State shall cooperate in the conduct of any inquiry held by that other State into any such marine casualty or incident of navigation. Article 95 Immunity of warships on the high seas Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State.
(Draft) First Edition, 2011 ( Annex III - 61 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Article 96 Immunity of ships used only on government non-commercial service Ships owned or operated by a State and used only on government non-commercial service shall, on the high seas, have complete immunity from the jurisdiction of any State other than the flag State. Article 97 Penal jurisdiction in matters of collision or any other incident of navigation 1. In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. 2. In disciplinary matters, the State which has issued a master's certificate or a certificate of competence or licence shall alone be competent, after due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them. 3. No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State. Article 98 Duty to render assistance 1. Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers: (a)
to render assistance to any person found at sea in danger of being lost;
(b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him; (c) after a collision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call. 2. Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States for this purpose. Article 99 Prohibition of the transport of slaves Every State shall take effective measures to prevent and punish the transport of slaves in ships authorized to fly its flag and to prevent the unlawful use of its flag for that purpose. Any slave taking refuge on board any ship, whatever its flag, shall ipso facto be free. Article 100 Duty to cooperate in the repression of piracy All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State. Article 101 Definition of piracy Piracy consists of any of the following acts: (Draft) First Edition, 2011 ( Annex III - 62 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii)
against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; (c)
any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b). Article 102 Piracy by a warship, government ship or government aircraft whose crew has mutinied
The acts of piracy, as defined in Article 101, committed by a warship, government ship or government aircraft whose crew has mutinied and taken control of the ship or aircraft are assimilated to acts committed by a private ship or aircraft. Article 103 Definition of a pirate ship or aircraft A ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in dominant control to be used for the purpose of committing one of the acts referred to in Article 101. The same applies if the ship or aircraft has been used to commit any such act, so long as it remains under the control of the persons guilty of that act. Article 104 Retention or loss of the nationality of a pirate ship or aircraft A ship or aircraft may retain its nationality although it has become a pirate ship or aircraft. The retention or loss of nationality is determined by the law of the State from which such nationality was derived. Article 105 Seizure of a pirate ship or aircraft On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith. Article 106 Liability for seizure without adequate grounds Where the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the State making the seizure shall be liable to the State the nationality of which is possessed by the ship or aircraft for any loss or damage caused by the seizure. Article 107 Ships and aircraft which are entitled to seize on account of piracy A seizure on account of piracy may be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect. Article 108 (Draft) First Edition, 2011 ( Annex III - 63 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Illicit traffic in narcotic drugs or psychotropic substances 1. All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions. 2. Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other States to suppress such traffic. Article 109 Unauthorized broadcasting from the high seas 1.
All States shall cooperate in the suppression of unauthorized broadcasting from the high seas.
2. For the purposes of this Convention, "unauthorized broadcasting" means the transmission of sound radio or television broadcasts from a ship or installation on the high seas intended for reception by the general public contrary to international regulations, but excluding the transmission of distress calls. 3.
Any person engaged in unauthorized broadcasting may be prosecuted before the court of: (a)
the flag State of the ship;
(b)
the State of registry of the installation;
(c)
the State of which the person is a national;
(d)
any State where the transmissions can be received; or
(e)
any State where authorized radio communication is suffering interference.
4. On the high seas, a State having jurisdiction in accordance with paragraph 3 may, in conformity with Article 110, arrest any person or ship engaged in unauthorized broadcasting and seize the broadcasting apparatus. Article 110 Right of visit 1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with Articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that: (a)
the ship is engaged in piracy;
(b)
the ship is engaged in the slave trade;
(c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under Article 109; (d)
the ship is without nationality; or
(e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship. 2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship's right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.
(Draft) First Edition, 2011 ( Annex III - 64 )
Notes in Constitutional Law I (Atty. Berne Guerrero) 3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained. 4.
These provisions apply mutatis mutandis to military aircraft.
5. These provisions also apply to any other duly authorized ships or aircraft clearly marked and identifiable as being on government service. Article 111 Right of hot pursuit 1. The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing State, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted. It is not necessary that, at the time when the foreign ship within the territorial sea or the contiguous zone receives the order to stop, the ship giving the order should likewise be within the territorial sea or the contiguous zone. If the foreign ship is within a contiguous zone, as defined in Article 33, the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established. 2. The right of hot pursuit shall apply mutatis mutandis to violations in the exclusive economic zone or on the continental shelf, including safety zones around continental shelf installations, of the laws and regulations of the coastal State applicable in accordance with this Convention to the exclusive economic zone or the continental shelf, including such safety zones. 3. State.
The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own State or of a third
4. Hot pursuit is not deemed to have begun unless the pursuing ship has satisfied itself by such practicable means as may be available that the ship pursued or one of its boats or other craft working as a team and using the ship pursued as a mother ship is within the limits of the territorial sea, or, as the case may be, within the contiguous zone or the exclusive economic zone or above the continental shelf. The pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship. 5. The right of hot pursuit may be exercised only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect. 6.
Where hot pursuit is effected by an aircraft: (a)
the provisions of paragraphs 1 to 4 shall apply mutatis mutandis;
(b) the aircraft giving the order to stop must itself actively pursue the ship until a ship or another aircraft of the coastal State, summoned by the aircraft, arrives to take over the pursuit, unless the aircraft is itself able to arrest the ship. It does not suffice to justify an arrest outside the territorial sea that the ship was merely sighted by the aircraft as an offender or suspected offender, if it was not both ordered to stop and pursued by the aircraft itself or other aircraft or ships which continue the pursuit without interruption. 7. The release of a ship arrested within the jurisdiction of a State and escorted to a port of that State for the purposes of an inquiry before the competent authorities may not be claimed solely on the ground that the ship, in the course of its voyage, was escorted across a portion of the exclusive economic zone or the high seas, if the circumstances rendered this necessary. 8. Where a ship has been stopped or arrested outside the territorial sea in circumstances which do not justify the exercise of the right of hot pursuit, it shall be compensated for any loss or damage that may have been thereby sustained. Article 112 (Draft) First Edition, 2011 ( Annex III - 65 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Right to lay submarine cables and pipelines 1. shelf.
All States are entitled to lay submarine cables and pipelines on the bed of the high seas beyond the continental
2.
Article 79, paragraph 5, applies to such cables and pipelines. Article 113 Breaking or injury of a submarine cable or pipeline
Every State shall adopt the laws and regulations necessary to provide that the breaking or injury by a ship flying its flag or by a person subject to its jurisdiction of a submarine cable beneath the high seas done wilfully or through culpable negligence, in such a manner as to be liable to interrupt or obstruct telegraphic or telephonic communications, and similarly the breaking or injury of a submarine pipeline or high-voltage power cable, shall be a punishable offence. This provision shall apply also to conduct calculated or likely to result in such breaking or injury. However, it shall not apply to any break or injury caused by persons who acted merely with the legitimate object of saving their lives or their ships, after having taken all necessary precautions to avoid such break or injury. Article 114 Breaking or injury by owners of a submarine cable or pipeline of another submarine cable or pipeline Every State shall adopt the laws and regulations necessary to provide that, if persons subject to its jurisdiction who are the owners of a submarine cable or pipeline beneath the high seas, in laying or repairing that cable or pipeline, cause a break in or injury to another cable or pipeline, they shall bear the cost of the repairs. Article 115 Indemnity for loss incurred in avoiding injury to a submarine cable or pipeline Every State shall adopt the laws and regulations necessary to ensure that the owners of ships who can prove that they have sacrificed an anchor, a net or any other fishing gear, in order to avoid injuring a submarine cable or pipeline, shall be indemnified by the owner of the cable or pipeline, provided that the owner of the ship has taken all reasonable precautionary measures beforehand. SECTION 2. CONSERVATION AND MANAGEMENT OF THE LIVING RESOURCES OF THE HIGH SEAS Article 116 Right to fish on the high seas All States have the right for their nationals to engage in fishing on the high seas subject to: (a)
their treaty obligations;
(b) the rights and duties as well as the interests of coastal States provided for, inter alia, in Article 63, paragraph 2, and Articles 64 to 67; and (c)
the provisions of this section.
Article 117 Duty of States to adopt with respect to their nationals measures for the conservation of the living resources of the high seas All States have the duty to take, or to cooperate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas. Article 118 (Draft) First Edition, 2011 ( Annex III - 66 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Cooperation of States in the conservation and management of living resources States shall cooperate with each other in the conservation and management of living resources in the areas of the high seas. States whose nationals exploit identical living resources, or different living resources in the same area, shall enter into negotiations with a view to taking the measures necessary for the conservation of the living resources concerned. They shall, as appropriate, cooperate to establish subregional or regional fisheries organizations to this end. Article 119 Conservation of the living resources of the high seas 1. In determining the allowable catch and establishing other conservation measures for the living resources in the high seas, States shall: (a) take measures which are designed, on the best scientific evidence available to the States concerned, to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global; (b) take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened. 2. Available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organizations, whether subregional, regional or global, where appropriate and with participation by all States concerned. 3. States concerned shall ensure that conservation measures and their implementation do not discriminate in form or in fact against the fishermen of any State. Article 120 Marine mammals Article 65 also applies to the conservation and management of marine mammals in the high seas. PART VIII. REGIME OF ISLANDS Article 121 Regime of islands 1.
An island is a naturally formed area of land, surrounded by water, which is above water at high tide.
2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory. 3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf. PART IX. ENCLOSED OR SEMI-ENCLOSED SEAS Article 122 Definition
(Draft) First Edition, 2011 ( Annex III - 67 )
Notes in Constitutional Law I (Atty. Berne Guerrero) For the purposes of this Convention, "enclosed or semi-enclosed sea" means a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States. Article 123 Cooperation of States bordering enclosed or semi-enclosed seas States bordering an enclosed or semi-enclosed sea should cooperate with each other in the exercise of their rights and in the performance of their duties under this Convention. To this end they shall endeavour, directly or through an appropriate regional organization: (a)
to coordinate the management, conservation, exploration and exploitation of the living resources of the sea;
(b) to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment; (c) to coordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area; (d) to invite, as appropriate, other interested States or international organizations to cooperate with them in furtherance of the provisions of this Article . PART X. RIGHT OF ACCESS OF LAND-LOCKED STATES TO AND FROM THE SEA AND FREEDOM OF TRANSIT Article 124 Use of terms 1.
For the purposes of this Convention: (a)
"land-locked State" means a State which has no sea-coast;
(b) "transit State" means a State, with or without a sea-coast, situated between a land-locked State and the sea, through whose territory traffic in transit passes; (c) "traffic in transit" means transit of persons, baggage, goods and means of transport across the territory of one or more transit States, when the passage across such territory, with or without trans-shipment, warehousing, breaking bulk or change in the mode of transport, is only a portion of a complete journey which begins or terminates within the territory of the land-locked State; (d)
"means of transport" means: (i)
railway rolling stock, sea, lake and river craft and road vehicles;
(ii)
where local conditions so require, porters and pack animals.
2. Land-locked States and transit States may, by agreement between them, include as means of transport pipelines and gas lines and means of transport other than those included in paragraph 1. Article 125 Right of access to and from the sea and freedom of transit 1. Land-locked States shall have the right of access to and from the sea for the purpose of exercising the rights provided for in this Convention including those relating to the freedom of the high seas and the common heritage of mankind. To this end, land-locked States shall enjoy freedom of transit through the territory of transit States by all means of transport. (Draft) First Edition, 2011 ( Annex III - 68 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
2. The terms and modalities for exercising freedom of transit shall be agreed between the land-locked States and transit States concerned through bilateral, subregional or regional agreements. 3. Transit States, in the exercise of their full sovereignty over their territory, shall have the right to take all measures necessary to ensure that the rights and facilities provided for in this Part for land-locked States shall in no way infringe their legitimate interests. Article 126 Exclusion of application of the most-favoured-nation clause The provisions of this Convention, as well as special agreements relating to the exercise of the right of access to and from the sea, establishing rights and facilities on account of the special geographical position of land-locked States, are excluded from the application of the most-favoured-nation clause. Article 127 Customs duties, taxes and other charges 1. Traffic in transit shall not be subject to any customs duties, taxes or other charges except charges levied for specific services rendered in connection with such traffic. 2. Means of transport in transit and other facilities provided for and used by land-locked States shall not be subject to taxes or charges higher than those levied for the use of means of transport of the transit State. Article 128 Free zones and other customs facilities For the convenience of traffic in transit, free zones or other customs facilities may be provided at the ports of entry and exit in the transit States, by agreement between those States and the land-locked States. Article 129 Cooperation in the construction and improvement of means of transport Where there are no means of transport in transit States to give effect to the freedom of transit or where the existing means, including the port installations and equipment, are inadequate in any respect, the transit States and land-locked States concerned may cooperate in constructing or improving them. Article 130 Measures to avoid or eliminate delays or other difficulties of a technical nature in traffic in transit 1. Transit States shall take all appropriate measures to avoid delays or other difficulties of a technical nature in traffic in transit. 2. Should such delays or difficulties occur, the competent authorities of the transit States and land-locked States concerned shall cooperate towards their expeditious elimination. Article 131 Equal treatment in maritime ports Ships flying the flag of land-locked States shall enjoy treatment equal to that accorded to other foreign ships in maritime ports. Article 132 Grant of greater transit facilities This Convention does not entail in any way the withdrawal of transit facilities which are greater than those provided for (Draft) First Edition, 2011 ( Annex III - 69 )
Notes in Constitutional Law I (Atty. Berne Guerrero) in this Convention and which are agreed between States Parties to this Convention or granted by a State Party. This Convention also does not preclude such grant of greater facilities in the future. PART XI. THE AREA SECTION 1. GENERAL PROVISIONS Article 133 Use of terms For the purposes of this Part: (a) "resources" means all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules; (b)
resources, when recovered from the Area, are referred to as "minerals". Article 134 Scope of this Part
1.
This Part applies to the Area.
2.
Activities in the Area shall be governed by the provisions of this Part.
3. The requirements concerning deposit of, and publicity to be given to, the charts or lists of geographical coordinates showing the limits referred to in Article l, paragraph l(1), are set forth in Part VI. 4. Nothing in this Article affects the establishment of the outer limits of the continental shelf in accordance with Part VI or the validity of agreements relating to delimitation between States with opposite or adjacent coasts. Article 135 Legal status of the superjacent waters and air space Neither this Part nor any rights granted or exercised pursuant thereto shall affect the legal status of the waters superjacent to the Area or that of the air space above those waters. SECTION 2. PRINCIPLES GOVERNING THE AREA Article 136 Common heritage of mankind The Area and its resources are the common heritage of mankind. Article 137 Legal status of the Area and its resources 1. No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof. No such claim or exercise of sovereignty or sovereign rights nor such appropriation shall be recognized. 2. All rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority shall act. These resources are not subject to alienation. The minerals recovered from the Area, however, may only be alienated in accordance with this Part and the rules, regulations and procedures of the Authority. (Draft) First Edition, 2011 ( Annex III - 70 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
3. No State or natural or juridical person shall claim, acquire or exercise rights with respect to the minerals recovered from the Area except in accordance with this Part. Otherwise, no such claim, acquisition or exercise of such rights shall be recognized. Article 138 General conduct of States in relation to the Area The general conduct of States in relation to the Area shall be in accordance with the provisions of this Part, the principles embodied in the Charter of the United Nations and other rules of international law in the interests of maintaining peace and security and promoting international cooperation and mutual understanding. Article 139 Responsibility to ensure compliance and liability for damage 1. States Parties shall have the responsibility to ensure that activities in the Area, whether carried out by States Parties, or state enterprises or natural or juridical persons which possess the nationality of States Parties or are effectively controlled by them or their nationals, shall be carried out in conformity with this Part. The same responsibility applies to international organizations for activities in the Area carried out by such organizations. 2. Without prejudice to the rules of international law and Annex III, Article 22, damage caused by the failure of a State Party or international organization to carry out its responsibilities under this Part shall entail liability; States Parties or international organizations acting together shall bear joint and several liability. A State Party shall not however be liable for damage caused by any failure to comply with this Part by a person whom it has sponsored under Article 153, paragraph 2(b), if the State Party has taken all necessary and appropriate measures to secure effective compliance under Article 153, paragraph 4, and Annex III, Article 4, paragraph 4. 3. States Parties that are members of international organizations shall take appropriate measures to ensure the implementation of this Article with respect to such organizations. Article 140 Benefit of mankind 1. Activities in the Area shall, as specifically provided for in this Part, be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States, whether coastal or land-locked, and taking into particular consideration the interests and needs of developing States and of peoples who have not attained full independence or other self-governing status recognized by the United Nations in accordance with General Assembly resolution 1514 (XV) and other relevant General Assembly resolutions. 2. The Authority shall provide for the equitable sharing of financial and other economic benefits derived from activities in the Area through any appropriate mechanism, on a non-discriminatory basis, in accordance with Article 160, paragraph 2(f)(i). Article 141 Use of the Area exclusively for peaceful purposes The Area shall be open to use exclusively for peaceful purposes by all States, whether coastal or land-locked, without discrimination and without prejudice to the other provisions of this Part. Article 142 Rights and legitimate interests of coastal States 1. Activities in the Area, with respect to resource deposits in the Area which lie across limits of national jurisdiction, shall be conducted with due regard to the rights and legitimate interests of any coastal State across whose jurisdiction such deposits lie.
(Draft) First Edition, 2011 ( Annex III - 71 )
Notes in Constitutional Law I (Atty. Berne Guerrero) 2. Consultations, including a system of prior notification, shall be maintained with the State concerned, with a view to avoiding infringement of such rights and interests. In cases where activities in the Area may result in the exploitation of resources lying within national jurisdiction, the prior consent of the coastal State concerned shall be required. 3. Neither this Part nor any rights granted or exercised pursuant thereto shall affect the rights of coastal States to take such measures consistent with the relevant provisions of Part XII as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline, or related interests from pollution or threat thereof or from other hazardous occurrences resulting from or caused by any activities in the Area. Article 143 Marine scientific research 1. Marine scientific research in the Area shall be carried out exclusively for peaceful purposes and for the benefit of mankind as a whole, in accordance with Part XIII. 2. The Authority may carry out marine scientific research concerning the Area and its resources, and may enter into contracts for that purpose. The Authority shall promote and encourage the conduct of marine scientific research in the Area, and shall coordinate and disseminate the results of such research and analysis when available. 3. States Parties may carry out marine scientific research in the Area. States Parties shall promote international cooperation in marine scientific research in the Area by: (a) participating in international programmes and encouraging cooperation in marine scientific research by personnel of different countries and of the Authority; (b) ensuring that programmes are developed through the Authority or other international organizations as appropriate for the benefit of developing States and technologically less developed States with a view to: (i)
strengthening their research capabilities;
(ii) training their personnel and the personnel of the Authority in the techniques and applications of research; (iii)
fostering the employment of their qualified personnel in research in the Area;
(c) effectively disseminating the results of research and analysis when available, through the Authority or other international channels when appropriate. Article 144 Transfer of technology 1.
The Authority shall take measures in accordance with this Convention: (a)
to acquire technology and scientific knowledge relating to activities in the Area; and
(b) to promote and encourage the transfer to developing States of such technology and scientific knowledge so that all States Parties benefit therefrom. 2. To this end the Authority and States Parties shall cooperate in promoting the transfer of technology and scientific knowledge relating to activities in the Area so that the Enterprise and all States Parties may benefit therefrom. In particular they shall initiate and promote: (a) programmes for the transfer of technology to the Enterprise and to developing States with regard to activities in the Area, including, inter alia, facilitating the access of the Enterprise and of developing States to the relevant technology, under fair and reasonable terms and conditions; (Draft) First Edition, 2011 ( Annex III - 72 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
(b) measures directed towards the advancement of the technology of the Enterprise and the domestic technology of developing States, particularly by providing opportunities to personnel from the Enterprise and from developing States for training in marine science and technology and for their full participation in activities in the Area. Article 145 Protection of the marine environment Necessary measures shall be taken in accordance with this Convention with respect to activities in the Area to ensure effective protection for the marine environment from harmful effects which may arise from such activities. To this end the Authority shall adopt appropriate rules, regulations and procedures for inter alia: (a) the prevention, reduction and control of pollution and other hazards to the marine environment, including the coastline, and of interference with the ecological balance of the marine environment, particular attention being paid to the need for protection from harmful effects of such activities as drilling, dredging, excavation, disposal of waste, construction and operation or maintenance of installations, pipelines and other devices related to such activities; (b) the protection and conservation of the natural resources of the Area and the prevention of damage to the flora and fauna of the marine environment. Article 146 Protection of human life With respect to activities in the Area, necessary measures shall be taken to ensure effective protection of human life. To this end the Authority shall adopt appropriate rules, regulations and procedures to supplement existing international law as embodied in relevant treaties. Article 147 Accommodation of activities in the Area and in the marine environment 1.
Activities in the Area shall be carried out with reasonable regard for other activities in the marine environment.
2.
Installations used for carrying out activities in the Area shall be subject to the following conditions: (a) such installations shall be erected, emplaced and removed solely in accordance with this Part and subject to the rules, regulations and procedures of the Authority. Due notice must be given of the erection, emplacement and removal of such installations, and permanent means for giving warning of their presence must be maintained; (b) such installations may not be established where interference may be caused to the use of recognized sea lanes essential to international navigation or in areas of intense fishing activity; (c) safety zones shall be established around such installations with appropriate markings to ensure the safety of both navigation and the installations. The configuration and location of such safety zones shall not be such as to form a belt impeding the lawful access of shipping to particular maritime zones or navigation along international sea lanes; (d)
such installations shall be used exclusively for peaceful purposes;
(e) such installations do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf. 3.
Other activities in the marine environment shall be conducted with reasonable regard for activities in the Area.
(Draft) First Edition, 2011 ( Annex III - 73 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Article 148 Participation of developing States in activities in the Area The effective participation of developing States in activities in the Area shall be promoted as specifically provided for in this Part, having due regard to their special interests and needs, and in particular to the special need of the land-locked and geographically disadvantaged among them to overcome obstacles arising from their disadvantaged location, including remoteness from the Area and difficulty of access to and from it. Article 149 Archaeological and historical objects All objects of an archaeological and historical nature found in the Area shall be preserved or disposed of for the benefit of mankind as a whole, particular regard being paid to the preferential rights of the State or country of origin, or the State of cultural origin, or the State of historical and archaeological origin. SECTION 3. DEVELOPMENT OF RESOURCES OF THE AREA Article 150 Policies relating to activities in the Area Activities in the Area shall, as specifically provided for in this Part, be carried out in such a manner as to foster healthy development of the world economy and balanced growth of international trade, and to promote international cooperation for the over-all development of all countries, especially developing States, and with a view to ensuring: (a)
the development of the resources of the Area;
(b) orderly, safe and rational management of the resources of the Area, including the efficient conduct of activities in the Area and, in accordance with sound principles of conservation, the avoidance of unnecessary waste; (c) 148;
the expansion of opportunities for participation in such activities consistent in particular with Articles 144 and
(d) participation in revenues by the Authority and the transfer of technology to the Enterprise and developing States as provided for in this Convention; (e) increased availability of the minerals derived from the Area as needed in conjunction with minerals derived from other sources, to ensure supplies to consumers of such minerals; (f) the promotion of just and stable prices remunerative to producers and fair to consumers for minerals derived both from the Area and from other sources, and the promotion of long-term equilibrium between supply and demand; (g) the enhancement of opportunities for all States Parties, irrespective of their social and economic systems or geographical location, to participate in the development of the resources of the Area and the prevention of monopolization of activities in the Area; (h) the protection of developing countries from adverse effects on their economies or on their export earnings resulting from a reduction in the price of an affected mineral, or in the volume of exports of that mineral, to the extent that such reduction is caused by activities in the Area, as provided in Article 151; (i)
the development of the common heritage for the benefit of mankind as a whole; and
(j) conditions of access to markets for the imports of minerals produced from the resources of the Area and for imports of commodities produced from such minerals shall not be more favourable than the most favourable applied to imports from other sources.
(Draft) First Edition, 2011 ( Annex III - 74 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Article 151 Production policies 1.
(a) Without prejudice to the objectives set forth in Article 150 and for the purpose of implementing subparagraph (h) of that Article , the Authority, acting through existing forums or such new arrangements or agreements as may be appropriate, in which all interested parties, including both producers and consumers, participate, shall take measures necessary to promote the growth, efficiency and stability of markets for those commodities produced from the minerals derived from the Area, at prices remunerative to producers and fair to consumers. All States Parties shall cooperate to this end. (b) The Authority shall have the right to participate in any commodity conference dealing with those commodities and in which all interested parties including both producers and consumers participate. The Authority shall have the right to become a party to any arrangement or agreement resulting from such conferences. Participation of the Authority in any organs established under those arrangements or agreements shall be in respect of production in the Area and in accordance with the relevant rules of those organs. (c) The Authority shall carry out its obligations under the arrangements or agreements referred to in this paragraph in a manner which assures a uniform and non-discriminatory implementation in respect of all production in the Area of the minerals concerned. In doing so, the Authority shall act in a manner consistent with the terms of existing contracts and approved plans of work of the Enterprise.
2.
(a) During the interim period specified in paragraph 3, commercial production shall not be undertaken pursuant to an approved plan of work until the operator has applied for and has been issued a production authorization by the Authority. Such production authorizations may not be applied for or issued more than five years prior to the planned commencement of commercial production under the plan of work unless, having regard to the nature and timing of project development, the rules, regulations and procedures of the Authority prescribe another period. (b) In the application for the production authorization, the operator shall specify the annual quantity of nickel expected to be recovered under the approved plan of work. The application shall include a schedule of expenditures to be made by the operator after he has received the authorization which are reasonably calculated to allow him to begin commercial production on the date planned. (c) For the purposes of subparagraphs (a) and (b), the Authority shall establish appropriate performance requirements in accordance with Annex III, Article 17. (d) The Authority shall issue a production authorization for the level of production applied for unless the sum of that level and the levels already authorized exceeds the nickel production ceiling, as calculated pursuant to paragraph 4 in the year of issuance of the authorization, during any year of planned production falling within the interim period. (e) When issued, the production authorization and approved application shall become a part of the approved plan of work. (f) If the operator's application for a production authorization is denied pursuant to subparagraph (d), the operator may apply again to the Authority at any time.
3. The interim period shall begin five years prior to 1 January of the year in which the earliest commercial production is planned to commence under an approved plan of work. If the earliest commercial production is delayed beyond the year originally planned, the beginning of the interim period and the production ceiling originally calculated shall be adjusted accordingly. The interim period shall last 25 years or until the end of the Review Conference referred to in Article 155 or until the day when such new arrangements or agreements as are referred to in paragraph 1 enter into force, whichever is earliest. The Authority shall resume the power provided in this Article for the remainder of the interim period if the said arrangements or agreements should lapse or become ineffective for any reason whatsoever. 4.
(a)
The production ceiling for any year of the interim period shall be the sum of: (Draft) First Edition, 2011 ( Annex III - 75 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
(i) the difference between the trend line values for nickel consumption, as calculated pursuant to subparagraph (b), for the year immediately prior to the year of the earliest commercial production and the year immediately prior to the commencement of the interim period; and (ii) sixty per cent of the difference between the trend line values for nickel consumption, as calculated pursuant to subparagraph (b), for the year for which the production authorization is being applied for and the year immediately prior to the year of the earliest commercial production. (b)
For the purposes of subparagraph (a): (i) trend line values used for computing the nickel production ceiling shall be those annual nickel consumption values on a trend line computed during the year in which a production authorization is issued. The trend line shall be derived from a linear regression of the logarithms of actual nickel consumption for the most recent 15-year period for which such data are available, time being the independent variable. This trend line shall be referred to as the original trend line; (ii) if the annual rate of increase of the original trend line is less than 3 per cent, then the trend line used to determine the quantities referred to in subparagraph (a) shall instead be one passing through the original trend line at the value for the first year of the relevant 15-year period, and increasing at 3 per cent annually; provided however that the production ceiling established for any year of the interim period may not in any case exceed the difference between the original trend line value for that year and the original trend line value for the year immediately prior to the commencement of the interim period.
5. The Authority shall reserve to the Enterprise for its initial production a quantity of 38,000 metric tonnes of nickel from the available production ceiling calculated pursuant to paragraph 4. 6.
(a) An operator may in any year produce less than or up to 8 per cent more than the level of annual production of minerals from polymetallic nodules specified in his production authorization, provided that the over-all amount of production shall not exceed that specified in the authorization. Any excess over 8 per cent and up to 20 per cent in any year, or any excess in the first and subsequent years following two consecutive years in which excesses occur, shall be negotiated with the Authority, which may require the operator to obtain a supplementary production authorization to cover additional production. (b) Applications for such supplementary production authorizations shall be considered by the Authority only after all pending applications by operators who have not yet received production authorizations have been acted upon and due account has been taken of other likely applicants. The Authority shall be guided by the principle of not exceeding the total production allowed under the production ceiling in any year of the interim period. It shall not authorize the production under any plan of work of a quantity in excess of 46,500 metric tonnes of nickel per year.
7. The levels of production of other metals such as copper, cobalt and manganese extracted from the polymetallic nodules that are recovered pursuant to a production authorization should not be higher than those which would have been produced had the operator produced the maximum level of nickel from those nodules pursuant to this Article . The Authority shall establish rules, regulations and procedures pursuant to Annex III, Article 17, to implement this paragraph. 8. Rights and obligations relating to unfair economic practices under relevant multilateral trade agreements shall apply to the exploration for and exploitation of minerals from the Area. In the settlement of disputes arising under this provision, States Parties which are Parties to such multilateral trade agreements shall have recourse to the dispute settlement procedures of such agreements. 9. The Authority shall have the power to limit the level of production of minerals from the Area, other than minerals from polymetallic nodules, under such conditions and applying such methods as may be appropriate by adopting regulations in accordance with Article 161, paragraph 8.
(Draft) First Edition, 2011 ( Annex III - 76 )
Notes in Constitutional Law I (Atty. Berne Guerrero) 10. Upon the recommendation of the Council on the basis of advice from the Economic Planning Commission, the Assembly shall establish a system of compensation or take other measures of economic adjustment assistance including cooperation with specialized agencies and other international organizations to assist developing countries which suffer serious adverse effects on their export earnings or economies resulting from a reduction in the price of an affected mineral or in the volume of exports of that mineral, to the extent that such reduction is caused by activities in the Area. The Authority on request shall initiate studies on the problems of those States which are likely to be most seriously affected with a view to minimizing their difficulties and assisting them in their economic adjustment. Article 152 Exercise of powers and functions by the Authority 1. The Authority shall avoid discrimination in the exercise of its powers and functions, including the granting of opportunities for activities in the Area. 2. Nevertheless, special consideration for developing States, including particular consideration for the land-locked and geographically disadvantaged among them, specifically provided for in this Part shall be permitted. Article 153 System of exploration and exploitation 1. Activities in the Area shall be organized, carried out and controlled by the Authority on behalf of mankind as a whole in accordance with this Article as well as other relevant provisions of this Part and the relevant Annexes, and the rules, regulations and procedures of the Authority. 2.
Activities in the Area shall be carried out as prescribed in paragraph 3: (a)
by the Enterprise, and
(b) in association with the Authority by States Parties, or state enterprises or natural or juridical persons which possess the nationality of States Parties or are effectively controlled by them or their nationals, when sponsored by such States, or any group of the foregoing which meets the requirements provided in this Part and in Annex III. 3. Activities in the Area shall be carried out in accordance with a formal written plan of work drawn up in accordance with Annex III and approved by the Council after review by the Legal and Technical Commission. In the case of activities in the Area carried out as authorized by the Authority by the entities specified in paragraph 2(b), the plan of work shall, in accordance with Annex III, Article 3, be in the form of a contract. Such contracts may provide for joint arrangements in accordance with Annex III, Article 11. 4. The Authority shall exercise such control over activities in the Area as is necessary for the purpose of securing compliance with the relevant provisions of this Part and the Annexes relating thereto, and the rules, regulations and procedures of the Authority, and the plans of work approved in accordance with paragraph 3. States Parties shall assist the Authority by taking all measures necessary to ensure such compliance in accordance with Article 139. 5. The Authority shall have the right to take at any time any measures provided for under this Part to ensure compliance with its provisions and the exercise of the functions of control and regulation assigned to it thereunder or under any contract. The Authority shall have the right to inspect all installations in the Area used in connection with activities in the Area. 6. A contract under paragraph 3 shall provide for security of tenure. Accordingly, the contract shall not be revised, suspended or terminated except in accordance with Annex III, Articles 18 and 19. Article 154 Periodic review Every five years from the entry into force of this Convention, the Assembly shall undertake a general and systematic (Draft) First Edition, 2011 ( Annex III - 77 )
Notes in Constitutional Law I (Atty. Berne Guerrero) review of the manner in which the international regime of the Area established in this Convention has operated in practice. In the light of this review the Assembly may take, or recommend that other organs take, measures in accordance with the provisions and procedures of this Part and the Annexes relating thereto which will lead to the improvement of the operation of the regime. Article 155 The Review Conference 1. Fifteen years from 1 January of the year in which the earliest commercial production commences under an approved plan of work, the Assembly shall convene a conference for the review of those provisions of this Part and the relevant Annexes which govern the system of exploration and exploitation of the resources of the Area. The Review Conference shall consider in detail, in the light of the experience acquired during that period: (a) whether the provisions of this Part which govern the system of exploration and exploitation of the resources of the Area have achieved their aims in all respects, including whether they have benefited mankind as a whole; (b) whether, during the 15-year period, reserved areas have been exploited in an effective and balanced manner in comparison with non-reserved areas; (c) whether the development and use of the Area and its resources have been undertaken in such a manner as to foster healthy development of the world economy and balanced growth of international trade; (d)
whether monopolization of activities in the Area has been prevented;
(e)
whether the policies set forth in Articles 150 and 151 have been fulfilled; and
(f) whether the system has resulted in the equitable sharing of benefits derived from activities in the Area, taking into particular consideration the interests and needs of the developing States. 2. The Review Conference shall ensure the maintenance of the principle of the common heritage of mankind, the international regime designed to ensure equitable exploitation of the resources of the Area for the benefit of all countries, especially the developing States, and an Authority to organize, conduct and control activities in the Area. It shall also ensure the maintenance of the principles laid down in this Part with regard to the exclusion of claims or exercise of sovereignty over any part of the Area, the rights of States and their general conduct in relation to the Area, and their participation in activities in the Area in conformity with this Convention, the prevention of monopolization of activities in the Area, the use of the Area exclusively for peaceful purposes, economic aspects of activities in the Area, marine scientific research, transfer of technology, protection of the marine environment, protection of human life, rights of coastal States, the legal status of the waters superjacent to the Area and that of the air space above those waters and accommodation between activities in the Area and other activities in the marine environment. 3. The decision-making procedure applicable at the Review Conference shall be the same as that applicable at the Third United Nations Conference on the Law of the Sea. The Conference shall make every effort to reach agreement on any amendments by way of consensus and there should be no voting on such matters until all efforts at achieving consensus have been exhausted. 4. If, five years after its commencement, the Review Conference has not reached agreement on the system of exploration and exploitation of the resources of the Area, it may decide during the ensuing 12 months, by a three-fourths majority of the States Parties, to adopt and submit to the States Parties for ratification or accession such amendments changing or modifying the system as it determines necessary and appropriate. Such amendments shall enter into force for all States Parties 12 months after the deposit of instruments of ratification or accession by three fourths of the States Parties. 5. Amendments adopted by the Review Conference pursuant to this Article shall not affect rights acquired under existing contracts.
(Draft) First Edition, 2011 ( Annex III - 78 )
Notes in Constitutional Law I (Atty. Berne Guerrero) SECTION 4. THE AUTHORITY SUBSECTION A. GENERAL PROVISIONS Article 156 Establishment of the Authority 1. Part.
There is hereby established the International Seabed Authority, which shall function in accordance with this
2.
All States Parties are ipso facto members of the Authority.
3. Observers at the Third United Nations Conference on the Law of the Sea who have signed the Final Act and who are not referred to in Article 305, paragraph 1(c), (d), (e) or (f), shall have the right to participate in the Authority as observers, in accordance with its rules, regulations and procedures. 4.
The seat of the Authority shall be in Jamaica.
5. The Authority may establish such regional centres or offices as it deems necessary for the exercise of its functions. Article 157 Nature and fundamental principles of the Authority 1. The Authority is the organization through which States Parties shall, in accordance with this Part, organize and control activities in the Area, particularly with a view to administering the resources of the Area. 2. The powers and functions of the Authority shall be those expressly conferred upon it by this Convention. The Authority shall have such incidental powers, consistent with this Convention, as are implicit in and necessary for the exercise of those powers and functions with respect to activities in the Area. 3.
The Authority is based on the principle of the sovereign equality of all its members.
4. All members of the Authority shall fulfil in good faith the obligations assumed by them in accordance with this Part in order to ensure to all of them the rights and benefits resulting from membership. Article 158 Organs of the Authority 1.
There are hereby established, as the principal organs of the Authority, an Assembly, a Council and a Secretariat.
2. There is hereby established the Enterprise, the organ through which the Authority shall carry out the functions referred to in Article 170, paragraph 1. 3.
Such subsidiary organs as may be found necessary may be established in accordance with this Part.
4. Each principal organ of the Authority and the Enterprise shall be responsible for exercising those powers and functions which are conferred upon it. In exercising such powers and functions each organ shall avoid taking any action which may derogate from or impede the exercise of specific powers and functions conferred upon another organ. SUBSECTION B. THE ASSEMBLY Article 159 (Draft) First Edition, 2011 ( Annex III - 79 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Composition, procedure and voting 1. The Assembly shall consist of all the members of the Authority. Each member shall have one representative in the Assembly, who may be accompanied by alternates and advisers. 2. The Assembly shall meet in regular annual sessions and in such special sessions as may be decided by the Assembly, or convened by the Secretary-General at the request of the Council or of a majority of the members of the Authority. 3.
Sessions shall take place at the seat of the Authority unless otherwise decided by the Assembly.
4. The Assembly shall adopt its rules of procedure. At the beginning of each regular session, it shall elect its President and such other officers as may be required. They shall hold office until a new President and other officers are elected at the next regular session. 5.
A majority of the members of the Assembly shall constitute a quorum.
6.
Each member of the Assembly shall have one vote.
7. Decisions on questions of procedure, including decisions to convene special sessions of the Assembly, shall be taken by a majority of the members present and voting. 8. Decisions on questions of substance shall be taken by a two-thirds majority of the members present and voting, provided that such majority includes a majority of the members participating in the session. When the issue arises as to whether a question is one of substance or not, that question shall be treated as one of substance unless otherwise decided by the Assembly by the majority required for decisions on questions of substance. 9. When a question of substance comes up for voting for the first time, the President may, and shall, if requested by at least one fifth of the members of the Assembly, defer the issue of taking a vote on that question for a period not exceeding five calendar days. This rule may be applied only once to any question, and shall not be applied so as to defer the question beyond the end of the session. 10. Upon a written request addressed to the President and sponsored by at least one fourth of the members of the Authority for an advisory opinion on the conformity with this Convention of a proposal before the Assembly on any matter, the Assembly shall request the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea to give an advisory opinion thereon and shall defer voting on that proposal pending receipt of the advisory opinion by the Chamber. If the advisory opinion is not received before the final week of the session in which it is requested, the Assembly shall decide when it will meet to vote upon the deferred proposal. Article 160 Powers and functions 1. The Assembly, as the sole organ of the Authority consisting of all the members, shall be considered the supreme organ of the Authority to which the other principal organs shall be accountable as specifically provided for in this Convention. The Assembly shall have the power to establish general policies in conformity with the relevant provisions of this Convention on any question or matter within the competence of the Authority. 2.
In addition, the powers and functions of the Assembly shall be: (a)
to elect the members of the Council in accordance with Article 161;
(b)
to elect the Secretary-General from among the candidates proposed by the Council;
(c) to elect, upon the recommendation of the Council, the members of the Governing Board of the Enterprise and the Director-General of the Enterprise;
(Draft) First Edition, 2011 ( Annex III - 80 )
Notes in Constitutional Law I (Atty. Berne Guerrero) (d) to establish such subsidiary organs as it finds necessary for the exercise of its functions in accordance with this Part. In the composition of these subsidiary organs due account shall be taken of the principle of equitable geographical distribution and of special interests and the need for members qualified and competent in the relevant technical questions dealt with by such organs; (e) to assess the contributions of members to the administrative budget of the Authority in accordance with an agreed scale of assessment based upon the scale used for the regular budget of the United Nations until the Authority shall have sufficient income from other sources to meet its administrative expenses; (f)
(i) to consider and approve, upon the recommendation of the Council, the rules, regulations and procedures on the equitable sharing of financial and other economic benefits derived from activities in the Area and the payments and contributions made pursuant to Article 82, taking into particular consideration the interests and needs of developing States and peoples who have not attained full independence or other self-governing status. If the Assembly does not approve the recommendations of the Council, the Assembly shall return them to the Council for reconsideration in the light of the views expressed by the Assembly; (ii) to consider and approve the rules, regulations and procedures of the Authority, and any amendments thereto, provisionally adopted by the Council pursuant to Article 162, paragraph 2 (o)(ii). These rules, regulations and procedures shall relate to prospecting, exploration and exploitation in the Area, the financial management and internal administration of the Authority, and, upon the recommendation of the Governing Board of the Enterprise, to the transfer of funds from the Enterprise to the Authority;
(g) to decide upon the equitable sharing of financial and other economic benefits derived from activities in the Area, consistent with this Convention and the rules, regulations and procedures of the Authority; (h)
to consider and approve the proposed annual budget of the Authority submitted by the Council;
(i) to examine periodic reports from the Council and from the Enterprise and special reports requested from the Council or any other organ of the Authority; (j) to initiate studies and make recommendations for the purpose of promoting international cooperation concerning activities in the Area and encouraging the progressive development of international law relating thereto and its codification; (k) to consider problems of a general nature in connection with activities in the Area arising in particular for developing States, as well as those problems for States in connection with activities in the Area that are due to their geographical location, particularly for land-locked and geographically disadvantaged States; (l) to establish, upon the recommendation of the Council, on the basis of advice from the Economic Planning Commission, a system of compensation or other measures of economic adjustment assistance as provided in Article 151, paragraph 10; (m)
to suspend the exercise of rights and privileges of membership pursuant to Article 185;
(n) to discuss any question or matter within the competence of the Authority and to decide as to which organ of the Authority shall deal with any such question or matter not specifically entrusted to a particular organ, consistent with the distribution of powers and functions among the organs of the Authority. SUBSECTION C. THE COUNCIL Article 161 Composition, procedure and voting
(Draft) First Edition, 2011 ( Annex III - 81 )
Notes in Constitutional Law I (Atty. Berne Guerrero) 1.
The Council shall consist of 36 members of the Authority elected by the Assembly in the following order: (a) four members from among those States Parties which, during the last five years for which statistics are available, have either consumed more than 2 per cent of total world consumption or have had net imports of more than 2 per cent of total world imports of the commodities produced from the categories of minerals to be derived from the Area, and in any case one State from the Eastern European (Socialist) region, as well as the largest consumer; (b) four members from among the eight States Parties which have the largest investments in preparation for and in the conduct of activities in the Area, either directly or through their nationals, including at least one State from the Eastern European (Socialist) region; (c) four members from among States Parties which on the basis of production in areas under their jurisdiction are major net exporters of the categories of minerals to be derived from the Area, including at least two developing States whose exports of such minerals have a substantial bearing upon their economies; (d) six members from among developing States Parties, representing special interests. The special interests to be represented shall include those of States with large populations, States which are land-locked or geographically disadvantaged, States which are major importers of the categories of minerals to be derived from the Area, States which are potential producers of such minerals, and least developed States; (e) eighteen members elected according to the principle of ensuring an equitable geographical distribution of seats in the Council as a whole, provided that each geographical region shall have at least one member elected under this subparagraph. For this purpose, the geographical regions shall be Africa, Asia, Eastern European (Socialist), Latin America and Western European and Others.
2.
In electing the members of the Council in accordance with paragraph 1, the Assembly shall ensure that: (a) land-locked and geographically disadvantaged States are represented to a degree which is reasonably proportionate to their representation in the Assembly; (b) coastal States, especially developing States, which do not qualify under paragraph 1(a), (b), (c) or (d) are represented to a degree which is reasonably proportionate to their representation in the Assembly; (c) each group of States Parties to be represented on the Council is represented by those members, if any, which are nominated by that group.
3. Elections shall take place at regular sessions of the Assembly. Each member of the Council shall be elected for four years. At the first election, however, the term of one half of the members of each group referred to in paragraph l shall be two years. 4. Members of the Council shall be eligible for re-election, but due regard should be paid to the desirability of rotation of membership. 5. The Council shall function at the seat of the Authority, and shall meet as often as the business of the Authority may require, but not less than three times a year. 6.
A majority of the members of the Council shall constitute a quorum.
7.
Each member of the Council shall have one vote.
8.
(a)
Decisions on questions of procedure shall be taken by a majority of the members present and voting.
(b) Decisions on questions of substance arising under the following provisions shall be taken by a twothirds majority of the members present and voting, provided that such majority includes a majority of the members of the Council: Article 162, paragraph 2, subparagraphs (f); (g); (h); (i); (n); (p); (v); Article 191. (Draft) First Edition, 2011 ( Annex III - 82 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
(c) Decisions on questions of substance arising under the following provisions shall be taken by a threefourths majority of the members present and voting, provided that such majority includes a majority of the members of the Council: Article 162, paragraph 1; Article 162, paragraph 2, subparagraphs (a); (b); (c); (d); (e); (l); (q); (r); (s); (t); (u) in cases of non-compliance by a contractor or a sponsor; (w) provided that orders issued thereunder may be binding for not more than 30 days unless confirmed by a decision taken in accordance with subparagraph (d); Article 162, paragraph 2, subparagraphs (x); (y); (z); Article 163, paragraph 2; Article 174, paragraph 3; Annex IV, Article 11. (d) Decisions on questions of substance arising under the following provisions shall be taken by consensus: Article 162, paragraph 2(m) and (o); adoption of amendments to Part XI. (e) For the purposes of subparagraphs (d), (f) and (g), "consensus" means the absence of any formal objection. Within 14 days of the submission of a proposal to the Council, the President of the Council shall determine whether there would be a formal objection to the adoption of the proposal. If the President determines that there would be such an objection, the President shall establish and convene, within three days following such determination, a conciliation committee consisting of not more than nine members of the Council, with the President as chairman, for the purpose of reconciling the differences and producing a proposal which can be adopted by consensus. The committee shall work expeditiously and report to the Council within 14 days following its establishment. If the committee is unable to recommend a proposal which can be adopted by consensus, it shall set out in its report the grounds on which the proposal is being opposed. (f) Decisions on questions not listed above which the Council is authorized to take by the rules, regulations and procedures of the Authority or otherwise shall be taken pursuant to the subparagraphs of this paragraph specified in the rules, regulations and procedures or, if not specified therein, then pursuant to the subparagraph determined by the Council if possible in advance, by consensus. (g) When the issue arises as to whether a question is within subparagraph (a), (b), (c) or (d), the question shall be treated as being within the subparagraph requiring the higher or highest majority or consensus as the case may be, unless otherwise decided by the Council by the said majority or by consensus. 9. The Council shall establish a procedure whereby a member of the Authority not represented on the Council may send a representative to attend a meeting of the Council when a request is made by such member, or a matter particularly affecting it is under consideration. Such a representative shall be entitled to participate in the deliberations but not to vote. Article 162 Powers and functions 1. The Council is the executive organ of the Authority. The Council shall have the power to establish, in conformity with this Convention and the general policies established by the Assembly, the specific policies to be pursued by the Authority on any question or matter within the competence of the Authority. 2.
In addition, the Council shall: (a) supervise and coordinate the implementation of the provisions of this Part on all questions and matters within the competence of the Authority and invite the attention of the Assembly to cases of non-compliance; (b)
propose to the Assembly a list of candidates for the election of the Secretary-General;
(c) recommend to the Assembly candidates for the election of the members of the Governing Board of the Enterprise and the Director-General of the Enterprise; (d) establish, as appropriate, and with due regard to economy and efficiency, such subsidiary organs as it finds necessary for the exercise of its functions in accordance with this Part. In the composition of subsidiary organs, emphasis shall be placed on the need for members qualified and competent in relevant technical matters (Draft) First Edition, 2011 ( Annex III - 83 )
Notes in Constitutional Law I (Atty. Berne Guerrero) dealt with by those organs provided that due account shall be taken of the principle of equitable geographical distribution and of special interests; (e)
adopt its rules of procedure including the method of selecting its president;
(f) enter into agreements with the United Nations or other international organizations on behalf of the Authority and within its competence, subject to approval by the Assembly; (g)
consider the reports of the Enterprise and transmit them to the Assembly with its recommendations;
(h)
present to the Assembly annual reports and such special reports as the Assembly may request;
(i)
issue directives to the Enterprise in accordance with Article 170;
(j) approve plans of work in accordance with Annex III, Article 6. The Council shall act upon each plan of work within 60 days of its submission by the Legal and Technical Commission at a session of the Council in accordance with the following procedures: (i) if the Commission recommends the approval of a plan of work, it shall be deemed to have been approved by the Council if no member of the Council submits in writing to the President within 14 days a specific objection alleging non-compliance with the requirements of Annex III, Article 6. If there is an objection, the conciliation procedure set forth in Article 161, paragraph 8(e), shall apply. If, at the end of the conciliation procedure, the objection is still maintained, the plan of work shall be deemed to have been approved by the Council unless the Council disapproves it by consensus among its members excluding any State or States making the application or sponsoring the applicant; (ii) if the Commission recommends the disapproval of a plan of work or does not make a recommendation, the Council may approve the plan of work by a three-fourths majority of the members present and voting, provided that such majority includes a majority of the members participating in the session; (k) approve plans of work submitted by the Enterprise in accordance with Annex IV, Article 12, applying, mutatis mutandis, the procedures set forth in subparagraph (j); (l) exercise control over activities in the Area in accordance with Article 153, paragraph 4, and the rules, regulations and procedures of the Authority; (m) take, upon the recommendation of the Economic Planning Commission, necessary and appropriate measures in accordance with Article 150, subparagraph (h), to provide protection from the adverse economic effects specified therein; (n) make recommendations to the Assembly, on the basis of advice from the Economic Planning Commission, for a system of compensation or other measures of economic adjustment assistance as provided in Article 151, paragraph 10; (o)
(i) recommend to the Assembly rules, regulations and procedures on the equitable sharing of financial and other economic benefits derived from activities in the Area and the payments and contributions made pursuant to Article 82, taking into particular consideration the interests and needs of the developing States and peoples who have not attained full independence or other self-governing status; (ii) adopt and apply provisionally, pending approval by the Assembly, the rules, regulations and procedures of the Authority, and any amendments thereto, taking into account the recommendations of the Legal and Technical Commission or other subordinate organ concerned. These rules, regulations and procedures shall relate to prospecting, exploration and exploitation in the Area and the financial management and internal administration of the Authority. Priority shall be given to the adoption of (Draft) First Edition, 2011 ( Annex III - 84 )
Notes in Constitutional Law I (Atty. Berne Guerrero) rules, regulations and procedures for the exploration for and exploitation of polymetallic nodules. Rules, regulations and procedures for the exploration for and exploitation of any resource other than polymetallic nodules shall be adopted within three years from the date of a request to the Authority by any of its members to adopt such rules, regulations and procedures in respect of such resource. All rules, regulations and procedures shall remain in effect on a provisional basis until approved by the Assembly or until amended by the Council in the light of any views expressed by the Assembly; (p) review the collection of all payments to be made by or to the Authority in connection with operations pursuant to this Part; (q) make the selection from among applicants for production authorizations pursuant to Annex III, Article 7, where such selection is required by that provision; (r)
submit the proposed annual budget of the Authority to the Assembly for its approval;
(s) make recommendations to the Assembly concerning policies on any question or matter within the competence of the Authority; (t) make recommendations to the Assembly concerning suspension of the exercise of the rights and privileges of membership pursuant to Article 185; (u) institute proceedings on behalf of the Authority before the Seabed Disputes Chamber in cases of noncompliance; (v) notify the Assembly upon a decision by the Seabed Disputes Chamber in proceedings instituted under subparagraph (u), and make any recommendations which it may find appropriate with respect to measures to be taken; (w) issue emergency orders, which may include orders for the suspension or adjustment of operations, to prevent serious harm to the marine environment arising out of activities in the Area; (x) disapprove areas for exploitation by contractors or the Enterprise in cases where substantial evidence indicates the risk of serious harm to the marine environment; (y) establish a subsidiary organ for the elaboration of draft financial rules, regulations and procedures relating to: (i)
financial management in accordance with Articles 171 to 175; and
(ii) 1(c);
financial arrangements in accordance with Annex III, Article 13 and Article 17, paragraph
(z) establish appropriate mechanisms for directing and supervising a staff of inspectors who shall inspect activities in the Area to determine whether this Part, the rules, regulations and procedures of the Authority, and the terms and conditions of any contract with the Authority are being complied with. Article 163 Organs of the Council 1.
2.
There are hereby established the following organs of the Council: (a)
an Economic Planning Commission;
(b)
a Legal and Technical Commission.
Each Commission shall be composed of 15 members, elected by the Council from among the candidates (Draft) First Edition, 2011 ( Annex III - 85 )
Notes in Constitutional Law I (Atty. Berne Guerrero) nominated by the States Parties. However, if necessary, the Council may decide to increase the size of either Commission having due regard to economy and efficiency. 3. Members of a Commission shall have appropriate qualifications in the area of competence of that Commission. States Parties shall nominate candidates of the highest standards of competence and integrity with qualifications in relevant fields so as to ensure the effective exercise of the functions of the Commissions. 4. In the election of members of the Commissions, due account shall be taken of the need for equitable geographical distribution and the representation of special interests. 5. No State Party may nominate more than one candidate for the same Commission. No person shall be elected to serve on more than one Commission. 6. Members of the Commissions shall hold office for a term of five years. They shall be eligible for re-election for a further term. 7. In the event of the death, incapacity or resignation of a member of a Commission prior to the expiration of the term of office, the Council shall elect for the remainder of the term, a member from the same geographical region or area of interest. 8. Members of Commissions shall have no financial interest in any activity relating to exploration and exploitation in the Area. Subject to their responsibilities to the Commissions upon which they serve, they shall not disclose, even after the termination of their functions, any industrial secret, proprietary data which are transferred to the Authority in accordance with Annex III, Article l4, or any other confidential information coming to their knowledge by reason of their duties for the Authority. 9. Each Commission shall exercise its functions in accordance with such guidelines and directives as the Council may adopt. 10. Each Commission shall formulate and submit to the Council for approval such rules and regulations as may be necessary for the efficient conduct of the Commission's functions. 11. The decision-making procedures of the Commissions shall be established by the rules, regulations and procedures of the Authority. Recommendations to the Council shall, where necessary, be accompanied by a summary on the divergencies of opinion in the Commission. 12. Each Commission shall normally function at the seat of the Authority and shall meet as often as is required for the efficient exercise of its functions. 13. In the exercise of its functions, each Commission may, where appropriate, consult another commission, any competent organ of the United Nations or of its specialized agencies or any international organizations with competence in the subject-matter of such consultation. Article 164 The Economic Planning Commission 1. Members of the Economic Planning Commission shall have appropriate qualifications such as those relevant to mining, management of mineral resource activities, international trade or international economics. The Council shall endeavour to ensure that the membership of the Commission reflects all appropriate qualifications. The Commission shall include at least two members from developing States whose exports of the categories of minerals to be derived from the Area have a substantial bearing upon their economies. 2.
The Commission shall: (a) propose, upon the request of the Council, measures to implement decisions relating to activities in the Area taken in accordance with this Convention; (Draft) First Edition, 2011 ( Annex III - 86 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
(b) review the trends of and the factors affecting supply, demand and prices of minerals which may be derived from the Area, bearing in mind the interests of both importing and exporting countries, and in particular of the developing States among them; (c) examine any situation likely to lead to the adverse effects referred to in Article 150, subparagraph (h), brought to its attention by the State Party or States Parties concerned, and make appropriate recommendations to the Council; (d) propose to the Council for submission to the Assembly, as provided in Article 151, paragraph 10, a system of compensation or other measures of economic adjustment assistance for developing States which suffer adverse effects caused by activities in the Area. The Commission shall make the recommendations to the Council that are necessary for the application of the system or other measures adopted by the Assembly in specific cases. Article 165 The Legal and Technical Commission 1. Members of the Legal and Technical Commission shall have appropriate qualifications such as those relevant to exploration for and exploitation and processing of mineral resources, oceanology, protection of the marine environment, or economic or legal matters relating to ocean mining and related fields of expertise. The Council shall endeavour to ensure that the membership of the Commission reflects all appropriate qualifications. 2.
The Commission shall: (a) make recommendations with regard to the exercise of the Authority's functions upon the request of the Council; (b) review formal written plans of work for activities in the Area in accordance with Article 153, paragraph 3, and submit appropriate recommendations to the Council. The Commission shall base its recommendations solely on the grounds stated in Annex III and shall report fully thereon to the Council; (c) supervise, upon the request of the Council, activities in the Area, where appropriate, in consultation and collaboration with any entity carrying out such activities or State or States concerned and report to the Council; (d)
prepare assessments of the environmental implications of activities in the Area;
(e) make recommendations to the Council on the protection of the marine environment, taking into account the views of recognized experts in that field; (f) formulate and submit to the Council the rules, regulations and procedures referred to in Article 162, paragraph 2(o), taking into account all relevant factors including assessments of the environmental implications of activities in the Area; (g) keep such rules, regulations and procedures under review and recommend to the Council from time to time such amendments thereto as it may deem necessary or desirable; (h) make recommendations to the Council regarding the establishment of a monitoring programme to observe, measure, evaluate and analyse, by recognized scientific methods, on a regular basis, the risks or effects of pollution of the marine environment resulting from activities in the Area, ensure that existing regulations are adequate and are complied with and coordinate the implementation of the monitoring programme approved by the Council; (i) recommend to the Council that proceedings be instituted on behalf of the Authority before the Seabed Disputes Chamber, in accordance with this Part and the relevant Annexes taking into account particularly (Draft) First Edition, 2011 ( Annex III - 87 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Article 187; (j) make recommendations to the Council with respect to measures to be taken, upon a decision by the Seabed Disputes Chamber in proceedings instituted in accordance with subparagraph (i); (k) make recommendations to the Council to issue emergency orders, which may include orders for the suspension or adjustment of operations, to prevent serious harm to the marine environment arising out of activities in the Area. Such recommendations shall be taken up by the Council on a priority basis; (l) make recommendations to the Council to disapprove areas for exploitation by contractors or the Enterprise in cases where substantial evidence indicates the risk of serious harm to the marine environment; (m) make recommendations to the Council regarding the direction and supervision of a staff of inspectors who shall inspect activities in the Area to determine whether the provisions of this Part, the rules, regulations and procedures of the Authority, and the terms and conditions of any contract with the Authority are being complied with; (n) calculate the production ceiling and issue production authorizations on behalf of the Authority pursuant to Article 151, paragraphs 2 to 7, following any necessary selection among applicants for production authorizations by the Council in accordance with Annex III, Article 7. 3. The members of the Commission shall, upon request by any State Party or other party concerned, be accompanied by a representative of such State or other party concerned when carrying out their function of supervision and inspection. SUBSECTION D. THE SECRETARIAT Article 166 The Secretariat 1.
The Secretariat of the Authority shall comprise a Secretary-General and such staff as the Authority may require.
2. The Secretary-General shall be elected for four years by the Assembly from among the candidates proposed by the Council and may be re-elected. 3. The Secretary-General shall be the chief administrative officer of the Authority, and shall act in that capacity in all meetings of the Assembly, of the Council and of any subsidiary organ, and shall perform such other administrative functions as are entrusted to the Secretary-General by these organs. 4.
The Secretary-General shall make an annual report to the Assembly on the work of the Authority. Article 167 The staff of the Authority
1. The staff of the Authority shall consist of such qualified scientific and technical and other personnel as may be required to fulfil the administrative functions of the Authority. 2. The paramount consideration in the recruitment and employment of the staff and in the determination of their conditions of service shall be the necessity of securing the highest standards of efficiency, competence and integrity. Subject to this consideration, due regard shall be paid to the importance of recruiting the staff on as wide a geographical basis as possible. 3. The staff shall be appointed by the Secretary-General. The terms and conditions on which they shall be appointed, remunerated and dismissed shall be in accordance with the rules, regulations and procedures of the Authority.
(Draft) First Edition, 2011 ( Annex III - 88 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Article 168 International character of the Secretariat 1. In the performance of their duties the Secretary-General and the staff shall not seek or receive instructions from any government or from any other source external to the Authority. They shall refrain from any action which might reflect on their position as international officials responsible only to the Authority. Each State Party undertakes to respect the exclusively international character of the responsibilities of the Secretary-General and the staff and not to seek to influence them in the discharge of their responsibilities. Any violation of responsibilities by a staff member shall be submitted to the appropriate administrative tribunal as provided in the rules, regulations and procedures of the Authority. 2. The Secretary-General and the staff shall have no financial interest in any activity relating to exploration and exploitation in the Area. Subject to their responsibilities to the Authority, they shall not disclose, even after the termination of their functions, any industrial secret, proprietary data which are transferred to the Authority in accordance with Annex III, Article 14, or any other confidential information coming to their knowledge by reason of their employment with the Authority. 3. Violations of the obligations of a staff member of the Authority set forth in paragraph 2 shall, on the request of a State Party affected by such violation, or a natural or juridical person, sponsored by a State Party as provided in Article 153, paragraph 2(b), and affected by such violation, be submitted by the Authority against the staff member concerned to a tribunal designated by the rules, regulations and procedures of the Authority. The Party affected shall have the right to take part in the proceedings. If the tribunal so recommends, the Secretary-General shall dismiss the staff member concerned. 4. The rules, regulations and procedures of the Authority shall contain such provisions as are necessary to implement this Article . Article 169 Consultation and cooperation with international and non-governmental organizations 1. The Secretary-General shall, on matters within the competence of the Authority, make suitable arrangements, with the approval of the Council, for consultation and cooperation with international and non-governmental organizations recognized by the Economic and Social Council of the United Nations. 2. Any organization with which the Secretary-General has entered into an arrangement under paragraph 1 may designate representatives to attend meetings of the organs of the Authority as observers in accordance with the rules of procedure of these organs. Procedures shall be established for obtaining the views of such organizations in appropriate cases. 3. The Secretary-General may distribute to States Parties written reports submitted by the non-governmental organizations referred to in paragraph l on subjects in which they have special competence and which are related to the work of the Authority. SUBSECTION E. THE ENTERPRISE Article 170 The Enterprise 1. The Enterprise shall be the organ of the Authority which shall carry out activities in the Area directly, pursuant to Article 153, paragraph 2(a), as well as the transporting, processing and marketing of minerals recovered from the Area. 2. The Enterprise shall, within the framework of the international legal personality of the Authority, have such legal capacity as is provided for in the Statute set forth in Annex IV. The Enterprise shall act in accordance with this Convention and the rules, regulations and procedures of the Authority, as well as the general policies established by the Assembly, and shall be subject to the directives and control of the Council. (Draft) First Edition, 2011 ( Annex III - 89 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
3.
The Enterprise shall have its principal place of business at the seat of the Authority.
4. The Enterprise shall, in accordance with Article 173, paragraph 2, and Annex IV, Article 11, be provided with such funds as it may require to carry out its functions, and shall receive technology as provided in Article 144 and other relevant provisions of this Convention. SUBSECTION F. FINANCIAL ARRANGEMENTS OF THE AUTHORITY Article 171 Funds of the Authority The funds of the Authority shall include: (a)
assessed contributions made by members of the Authority in accordance with Article 160, paragraph 2(e);
(b)
funds received by the Authority pursuant to Annex III, Article 13, in connection with activities in the Area;
(c)
funds transferred from the Enterprise in accordance with Annex IV, Article 10;
(d)
funds borrowed pursuant to Article 174;
(e)
voluntary contributions made by members or other entities; and
(f) payments to a compensation fund, in accordance with Article 151, paragraph 10, whose sources are to be recommended by the Economic Planning Commission. Article 172 Annual budget of the Authority The Secretary-General shall draft the proposed annual budget of the Authority and submit it to the Council. The Council shall consider the proposed annual budget and submit it to the Assembly, together with any recommendations thereon. The Assembly shall consider and approve the proposed annual budget in accordance with Article 160, paragraph 2(h). Article 173 Expenses of the Authority 1. The contributions referred to in Article 171, subparagraph (a), shall be paid into a special account to meet the administrative expenses of the Authority until the Authority has sufficient funds from other sources to meet those expenses. 2. The administrative expenses of the Authority shall be a first call upon the funds of the Authority. Except for the assessed contributions referred to in Article 171, subparagraph (a), the funds which remain after payment of administrative expenses may, inter alia: (a)
be shared in accordance with Article 140 and Article 160, paragraph 2(g);
(b)
be used to provide the Enterprise with funds in accordance with Article 170, paragraph 4;
(c) be used to compensate developing States in accordance with Article 151, paragraph 10, and Article 160, paragraph 2(l). Article 174 Borrowing power of the Authority
(Draft) First Edition, 2011 ( Annex III - 90 )
Notes in Constitutional Law I (Atty. Berne Guerrero) 1.
The Authority shall have the power to borrow funds.
2. The Assembly shall prescribe the limits on the borrowing power of the Authority in the financial regulations adopted pursuant to Article 160, paragraph 2(f). 3.
The Council shall exercise the borrowing power of the Authority.
4.
States Parties shall not be liable for the debts of the Authority. Article 175 Annual audit
The records, books and accounts of the Authority, including its annual financial statements, shall be audited annually by an independent auditor appointed by the Assembly. SUBSECTION G. LEGAL STATUS, PRIVILEGES AND IMMUNITIES Article 176 Legal status The Authority shall have international legal personality and such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes. Article 177 Privileges and immunities To enable the Authority to exercise its functions, it shall enjoy in the territory of each State Party the privileges and immunities set forth in this subsection. The privileges and immunities relating to the Enterprise shall be those set forth in Annex IV, Article 13. Article 178 Immunity from legal process The Authority, its property and assets, shall enjoy immunity from legal process except to the extent that the Authority expressly waives this immunity in a particular case. Article 179 Immunity from search and any form of seizure The property and assets of the Authority, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation or any other form of seizure by executive or legislative action. Article 180 Exemption from restrictions, regulations, controls and moratoria The property and assets of the Authority shall be exempt from restrictions, regulations, controls and moratoria of any nature. Article 181 Archives and official communications of the Authority 1.
The archives of the Authority, wherever located, shall be inviolable.
2. Proprietary data, industrial secrets or similar information and personnel records shall not be placed in archives which are open to public inspection. (Draft) First Edition, 2011 ( Annex III - 91 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
3. With regard to its official communications, the Authority shall be accorded by each State Party treatment no less favourable than that accorded by that State to other international organizations. Article 182 Privileges and immunities of certain persons connected with the Authority Representatives of States Parties attending meetings of the Assembly, the Council or organs of the Assembly or the Council, and the Secretary-General and staff of the Authority, shall enjoy in the territory of each State Party: (a) immunity from legal process with respect to acts performed by them in the exercise of their functions, except to the extent that the State which they represent or the Authority, as appropriate, expressly waives this immunity in a particular case; (b) if they are not nationals of that State Party, the same exemptions from immigration restrictions, alien registration requirements and national service obligations, the same facilities as regards exchange restrictions and the same treatment in respect of travelling facilities as are accorded by that State to the representatives, officials and employees of comparable rank of other States Parties. Article 183 Exemption from taxes and customs duties 1. Within the scope of its official activities, the Authority, its assets and property, its income, and its operations and transactions, authorized by this Convention, shall be exempt from all direct taxation and goods imported or exported for its official use shall be exempt from all customs duties. The Authority shall not claim exemption from taxes which are no more than charges for services rendered. 2. When purchases of goods or services of substantial value necessary for the official activities of the Authority are made by or on behalf of the Authority, and when the price of such goods or services includes taxes or duties, appropriate measures shall, to the extent practicable, be taken by States Parties to grant exemption from such taxes or duties or provide for their reimbursement. Goods imported or purchased under an exemption provided for in this Article shall not be sold or otherwise disposed of in the territory of the State Party which granted the exemption, except under conditions agreed with that State Party. 3. No tax shall be levied by States Parties on or in respect of salaries and emoluments paid or any other form of payment made by the Authority to the Secretary-General and staff of the Authority, as well as experts performing missions for the Authority, who are not their nationals. SUBSECTION H. SUSPENSION OF THE EXERCISE OF RIGHTS AND PRIVILEGES OF MEMBERS Article 184 Suspension of the exercise of voting rights A State Party which is in arrears in the payment of its financial contributions to the Authority shall have no vote if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years. The Assembly may, nevertheless, permit such a member to vote if it is satisfied that the failure to pay is due to conditions beyond the control of the member. Article 185 Suspension of exercise of rights and privileges of membership 1. A State Party which has grossly and persistently violated the provisions of this Part may be suspended from the exercise of the rights and privileges of membership by the Assembly upon the recommendation of the Council. 2.
No action may be taken under paragraph 1 until the Seabed Disputes Chamber has found that a State Party has (Draft) First Edition, 2011 ( Annex III - 92 )
Notes in Constitutional Law I (Atty. Berne Guerrero) grossly and persistently violated the provisions of this Part. SECTION 5. SETTLEMENT OF DISPUTES AND ADVISORY OPINIONS Article 186 Seabed Disputes Chamber of the International Tribunal for the Law of the Sea The establishment of the Seabed Disputes Chamber and the manner in which it shall exercise its jurisdiction shall be governed by the provisions of this section, of Part XV and of Annex VI. Article 187 Jurisdiction of the Seabed Disputes Chamber The Seabed Disputes Chamber shall have jurisdiction under this Part and the Annexes relating thereto in disputes with respect to activities in the Area falling within the following categories: (a) disputes between States Parties concerning the interpretation or application of this Part and the Annexes relating thereto; (b)
disputes between a State Party and the Authority concerning: (i) acts or omissions of the Authority or of a State Party alleged to be in violation of this Part or the Annexes relating thereto or of rules, regulations and procedures of the Authority adopted in accordance therewith; or (ii)
acts of the Authority alleged to be in excess of jurisdiction or a misuse of power;
(c) disputes between parties to a contract, being States Parties, the Authority or the Enterprise, state enterprises and natural or juridical persons referred to in Article 153, paragraph 2(b), concerning: (i)
the interpretation or application of a relevant contract or a plan of work; or
(ii) acts or omissions of a party to the contract relating to activities in the Area and directed to the other party or directly affecting its legitimate interests; (d) disputes between the Authority and a prospective contractor who has been sponsored by a State as provided in Article 153, paragraph 2(b), and has duly fulfilled the conditions referred to in Annex III, Article 4, paragraph 6, and Article 13, paragraph 2, concerning the refusal of a contract or a legal issue arising in the negotiation of the contract; (e) disputes between the Authority and a State Party, a state enterprise or a natural or juridical person sponsored by a State Party as provided for in Article 153, paragraph 2(b), where it is alleged that the Authority has incurred liability as provided in Annex III, Article 22; (f)
any other disputes for which the jurisdiction of the Chamber is specifically provided in this Convention.
Article 188 Submission of disputes to a special chamber of the International Tribunal for the Law of the Sea or an ad hoc chamber of the Seabed Disputes Chamber or to binding commercial arbitration 1.
Disputes between States Parties referred to in Article 187, subparagraph (a), may be submitted: (a) at the request of the parties to the dispute, to a special chamber of the International Tribunal for the Law of the Sea to be formed in accordance with Annex VI, Articles 15 and 17; or (b)
at the request of any party to the dispute, to an ad hoc chamber of the Seabed Disputes Chamber to be (Draft) First Edition, 2011 ( Annex III - 93 )
Notes in Constitutional Law I (Atty. Berne Guerrero) formed in accordance with Annex VI, Article 36. 2.
(a) Disputes concerning the interpretation or application of a contract referred to in Article 187, subparagraph (c)(i), shall be submitted, at the request of any party to the dispute, to binding commercial arbitration, unless the parties otherwise agree. A commercial arbitral tribunal to which the dispute is submitted shall have no jurisdiction to decide any question of interpretation of this Convention. When the dispute also involves a question of the interpretation of Part XI and the Annexes relating thereto, with respect to activities in the Area, that question shall be referred to the Seabed Disputes Chamber for a ruling. (b) If, at the commencement of or in the course of such arbitration, the arbitral tribunal determines, either at the request of any party to the dispute or proprio motu, that its decision depends upon a ruling of the Seabed Disputes Chamber, the arbitral tribunal shall refer such question to the Seabed Disputes Chamber for such ruling. The arbitral tribunal shall then proceed to render its award in conformity with the ruling of the Seabed Disputes Chamber. (c) In the absence of a provision in the contract on the arbitration procedure to be applied in the dispute, the arbitration shall be conducted in accordance with the UNCITRAL Arbitration Rules or such other arbitration rules as may be prescribed in the rules, regulations and procedures of the Authority, unless the parties to the dispute otherwise agree. Article 189 Limitation on jurisdiction with regard to decisions of the Authority
The Seabed Disputes Chamber shall have no jurisdiction with regard to the exercise by the Authority of its discretionary powers in accordance with this Part; in no case shall it substitute its discretion for that of the Authority. Without prejudice to Article 191, in exercising its jurisdiction pursuant to Article 187, the Seabed Disputes Chamber shall not pronounce itself on the question of whether any rules, regulations and procedures of the Authority are in conformity with this Convention, nor declare invalid any such rules, regulations and procedures. Its jurisdiction in this regard shall be confined to deciding claims that the application of any rules, regulations and procedures of the Authority in individual cases would be in conflict with the contractual obligations of the parties to the dispute or their obligations under this Convention, claims concerning excess of jurisdiction or misuse of power, and to claims for damages to be paid or other remedy to be given to the party concerned for the failure of the other party to comply with its contractual obligations or its obligations under this Convention. Article 190 Participation and appearance of sponsoring States Parties in proceedings 1. If a natural or juridical person is a party to a dispute referred to in Article 187, the sponsoring State shall be given notice thereof and shall have the right to participate in the proceedings by submitting written or oral statements. 2. If an action is brought against a State Party by a natural or juridical person sponsored by another State Party in a dispute referred to in Article 187, subparagraph (c), the respondent State may request the State sponsoring that person to appear in the proceedings on behalf of that person. Failing such appearance, the respondent State may arrange to be represented by a juridical person of its nationality. Article 191 Advisory opinions The Seabed Disputes Chamber shall give advisory opinions at the request of the Assembly or the Council on legal questions arising within the scope of their activities. Such opinions shall be given as a matter of urgency. PART XII. PROTECTION AND PRESERVATION OF THE MARINE ENVIRONMENT SECTION 1. GENERAL PROVISIONS (Draft) First Edition, 2011 ( Annex III - 94 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
Article 192 General obligation States have the obligation to protect and preserve the marine environment. Article 193 Sovereign right of States to exploit their natural resources States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment. Article 194 Measures to prevent, reduce and control pollution of the marine environment 1. States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall endeavour to harmonize their policies in this connection. 2. States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention. 3. The measures taken pursuant to this Part shall deal with all sources of pollution of the marine environment. These measures shall include, inter alia, those designed to minimize to the fullest possible extent: (a) the release of toxic, harmful or noxious substances, especially those which are persistent, from landbased sources, from or through the atmosphere or by dumping; (b) pollution from vessels, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, preventing intentional and unintentional discharges, and regulating the design, construction, equipment, operation and manning of vessels; (c) pollution from installations and devices used in exploration or exploitation of the natural resources of the seabed and subsoil, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices; (d) pollution from other installations and devices operating in the marine environment, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices. 4. In taking measures to prevent, reduce or control pollution of the marine environment, States shall refrain from unjustifiable interference with activities carried out by other States in the exercise of their rights and in pursuance of their duties in conformity with this Convention. 5. The measures taken in accordance with this Part shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life. Article 195 Duty not to transfer damage or hazards or transform one type of pollution into another In taking measures to prevent, reduce and control pollution of the marine environment, States shall act so as not to transfer, directly or indirectly, damage or hazards from one area to another or transform one type of pollution into (Draft) First Edition, 2011 ( Annex III - 95 )
Notes in Constitutional Law I (Atty. Berne Guerrero) another. Article 196 Use of technologies or introduction of alien or new species 1. States shall take all measures necessary to prevent, reduce and control pollution of the marine environment resulting from the use of technologies under their jurisdiction or control, or the intentional or accidental introduction of species, alien or new, to a particular part of the marine environment, which may cause significant and harmful changes thereto. 2. This Article does not affect the application of this Convention regarding the prevention, reduction and control of pollution of the marine environment. SECTION 2. GLOBAL AND REGIONAL COOPERATION Article 197 Cooperation on a global or regional basis States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features. Article 198 Notification of imminent or actual damage When a State becomes aware of cases in which the marine environment is in imminent danger of being damaged or has been damaged by pollution, it shall immediately notify other States it deems likely to be affected by such damage, as well as the competent international organizations. Article 199 Contingency plans against pollution In the cases referred to in Article 198, States in the area affected, in accordance with their capabilities, and the competent international organizations shall cooperate, to the extent possible, in eliminating the effects of pollution and preventing or minimizing the damage. To this end, States shall jointly develop and promote contingency plans for responding to pollution incidents in the marine environment. Article 200 Studies, research programmes and exchange of information and data States shall cooperate, directly or through competent international organizations, for the purpose of promoting studies, undertaking programmes of scientific research and encouraging the exchange of information and data acquired about pollution of the marine environment. They shall endeavour to participate actively in regional and global programmes to acquire knowledge for the assessment of the nature and extent of pollution, exposure to it, and its pathways, risks and remedies. Article 201 Scientific criteria for regulations In the light of the information and data acquired pursuant to Article 200, States shall cooperate, directly or through competent international organizations, in establishing appropriate scientific criteria for the formulation and elaboration of rules, standards and recommended practices and procedures for the prevention, reduction and control of pollution of the marine environment.
(Draft) First Edition, 2011 ( Annex III - 96 )
Notes in Constitutional Law I (Atty. Berne Guerrero) SECTION 3. TECHNICAL ASSISTANCE Article 202 Scientific and technical assistance to developing States States shall, directly or through competent international organizations: (a) promote programmes of scientific, educational, technical and other assistance to developing States for the protection and preservation of the marine environment and the prevention, reduction and control of marine pollution. Such assistance shall include, inter alia: (i)
training of their scientific and technical personnel;
(ii)
facilitating their participation in relevant international programmes;
(iii)
supplying them with necessary equipment and facilities;
(iv)
enhancing their capacity to manufacture such equipment;
(v)
advice on and developing facilities for research, monitoring, educational and other programmes;
(b) provide appropriate assistance, especially to developing States, for the minimization of the effects of major incidents which may cause serious pollution of the marine environment; (c) provide appropriate assistance, especially to developing States, concerning the preparation of environmental assessments. Article 203 Preferential treatment for developing States Developing States shall, for the purposes of prevention, reduction and control of pollution of the marine environment or minimization of its effects, be granted preference by international organizations in: (a)
the allocation of appropriate funds and technical assistance; and
(b)
the utilization of their specialized services. SECTION 4. MONITORING AND ENVIRONMENTAL ASSESSMENT Article 204 Monitoring of the risks or effects of pollution
1. States shall, consistent with the rights of other States, endeavour, as far as practicable, directly or through the competent international organizations, to observe, measure, evaluate and analyse, by recognized scientific methods, the risks or effects of pollution of the marine environment. 2. In particular, States shall keep under surveillance the effects of any activities which they permit or in which they engage in order to determine whether these activities are likely to pollute the marine environment. Article 205 Publication of reports States shall publish reports of the results obtained pursuant to Article 204 or provide such reports at appropriate intervals to the competent international organizations, which should make them available to all States. (Draft) First Edition, 2011 ( Annex III - 97 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
Article 206 Assessment of potential effects of activities When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments in the manner provided in Article 205. SECTION 5. INTERNATIONAL RULES AND NATIONAL LEGISLATION TO PREVENT, REDUCE AND CONTROL POLLUTION OF THE MARINE ENVIRONMENT Article 207 Pollution from land-based sources 1. States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources, including rivers, estuaries, pipelines and outfall structures, taking into account internationally agreed rules, standards and recommended practices and procedures. 2.
States shall take other measures as may be necessary to prevent, reduce and control such pollution.
3.
States shall endeavour to harmonize their policies in this connection at the appropriate regional level.
4. States, acting especially through competent international organizations or diplomatic conference, shall endeavour to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control pollution of the marine environment from land-based sources, taking into account characteristic regional features, the economic capacity of developing States and their need for economic development. Such rules, standards and recommended practices and procedures shall be re-examined from time to time as necessary. 5. Laws, regulations, measures, rules, standards and recommended practices and procedures referred to in paragraphs 1, 2 and 4 shall include those designed to minimize, to the fullest extent possible, the release of toxic, harmful or noxious substances, especially those which are persistent, into the marine environment. Article 208 Pollution from seabed activities subject to national jurisdiction 1. Coastal States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment arising from or in connection with seabed activities subject to their jurisdiction and from artificial islands, installations and structures under their jurisdiction, pursuant to Articles 60 and 80. 2.
States shall take other measures as may be necessary to prevent, reduce and control such pollution.
3. Such laws, regulations and measures shall be no less effective than international rules, standards and recommended practices and procedures. 4.
States shall endeavour to harmonize their policies in this connection at the appropriate regional level.
5. States, acting especially through competent international organizations or diplomatic conference, shall establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control pollution of the marine environment referred to in paragraph l. Such rules, standards and recommended practices and procedures shall be re-examined from time to time as necessary. Article 209 Pollution from activities in the Area
(Draft) First Edition, 2011 ( Annex III - 98 )
Notes in Constitutional Law I (Atty. Berne Guerrero) 1. International rules, regulations and procedures shall be established in accordance with Part XI to prevent, reduce and control pollution of the marine environment from activities in the Area. Such rules, regulations and procedures shall be re-examined from time to time as necessary. 2. Subject to the relevant provisions of this section, States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from activities in the Area undertaken by vessels, installations, structures and other devices flying their flag or of their registry or operating under their authority, as the case may be. The requirements of such laws and regulations shall be no less effective than the international rules, regulations and procedures referred to in paragraph 1. Article 210 Pollution by dumping 1. States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment by dumping. 2.
States shall take other measures as may be necessary to prevent, reduce and control such pollution.
3. Such laws, regulations and measures shall ensure that dumping is not carried out without the permission of the competent authorities of States. 4. States, acting especially through competent international organizations or diplomatic conference, shall endeavour to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control such pollution. Such rules, standards and recommended practices and procedures shall be re-examined from time to time as necessary. 5. Dumping within the territorial sea and the exclusive economic zone or onto the continental shelf shall not be carried out without the express prior approval of the coastal State, which has the right to permit, regulate and control such dumping after due consideration of the matter with other States which by reason of their geographical situation may be adversely affected thereby. 6. National laws, regulations and measures shall be no less effective in preventing, reducing and controlling such pollution than the global rules and standards. Article 211 Pollution from vessels 1. States, acting through the competent international organization or general diplomatic conference, shall establish international rules and standards to prevent, reduce and control pollution of the marine environment from vessels and promote the adoption, in the same manner, wherever appropriate, of routeing systems designed to minimize the threat of accidents which might cause pollution of the marine environment, including the coastline, and pollution damage to the related interests of coastal States. Such rules and standards shall, in the same manner, be re-examined from time to time as necessary. 2. States shall adopt laws and regulations for the prevention, reduction and control of pollution of the marine environment from vessels flying their flag or of their registry. Such laws and regulations shall at least have the same effect as that of generally accepted international rules and standards established through the competent international organization or general diplomatic conference. 3. States which establish particular requirements for the prevention, reduction and control of pollution of the marine environment as a condition for the entry of foreign vessels into their ports or internal waters or for a call at their off-shore terminals shall give due publicity to such requirements and shall communicate them to the competent international organization. Whenever such requirements are established in identical form by two or more coastal States in an endeavour to harmonize policy, the communication shall indicate which States are participating in such cooperative arrangements. Every State shall require the master of a vessel flying its flag or of its registry, when navigating within the territorial sea of a State participating in such cooperative arrangements, to furnish, upon the request of that State, (Draft) First Edition, 2011 ( Annex III - 99 )
Notes in Constitutional Law I (Atty. Berne Guerrero) information as to whether it is proceeding to a State of the same region participating in such cooperative arrangements and, if so, to indicate whether it complies with the port entry requirements of that State. This Article is without prejudice to the continued exercise by a vessel of its right of innocent passage or to the application of Article 25, paragraph 2. 4. Coastal States may, in the exercise of their sovereignty within their territorial sea, adopt laws and regulations for the prevention, reduction and control of marine pollution from foreign vessels, including vessels exercising the right of innocent passage. Such laws and regulations shall, in accordance with Part II, section 3, not hamper innocent passage of foreign vessels. 5. Coastal States, for the purpose of enforcement as provided for in section 6, may in respect of their exclusive economic zones adopt laws and regulations for the prevention, reduction and control of pollution from vessels conforming to and giving effect to generally accepted international rules and standards established through the competent international organization or general diplomatic conference. 6.
(a) Where the international rules and standards referred to in paragraph 1 are inadequate to meet special circumstances and coastal States have reasonable grounds for believing that a particular, clearly defined area of their respective exclusive economic zones is an area where the adoption of special mandatory measures for the prevention of pollution from vessels is required for recognized technical reasons in relation to its oceanographical and ecological conditions, as well as its utilization or the protection of its resources and the particular character of its traffic, the coastal States, after appropriate consultations through the competent international organization with any other States concerned, may, for that area, direct a communication to that organization, submitting scientific and technical evidence in support and information on necessary reception facilities. Within 12 months after receiving such a communication, the organization shall determine whether the conditions in that area correspond to the requirements set out above. If the organization so determines, the coastal States may, for that area, adopt laws and regulations for the prevention, reduction and control of pollution from vessels implementing such international rules and standards or navigational practices as are made applicable, through the organization, for special areas. These laws and regulations shall not become applicable to foreign vessels until 15 months after the submission of the communication to the organization. (b)
The coastal States shall publish the limits of any such particular, clearly defined area.
(c) If the coastal States intend to adopt additional laws and regulations for the same area for the prevention, reduction and control of pollution from vessels, they shall, when submitting the aforesaid communication, at the same time notify the organization thereof. Such additional laws and regulations may relate to discharges or navigational practices but shall not require foreign vessels to observe design, construction, manning or equipment standards other than generally accepted international rules and standards; they shall become applicable to foreign vessels 15 months after the submission of the communication to the organization, provided that the organization agrees within 12 months after the submission of the communication. 7. The international rules and standards referred to in this Article should include inter alia those relating to prompt notification to coastal States, whose coastline or related interests may be affected by incidents, including maritime casualties, which involve discharges or probability of discharges. Article 212 Pollution from or through the atmosphere 1. States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from or through the atmosphere, applicable to the air space under their sovereignty and to vessels flying their flag or vessels or aircraft of their registry, taking into account internationally agreed rules, standards and recommended practices and procedures and the safety of air navigation. 2.
States shall take other measures as may be necessary to prevent, reduce and control such pollution.
3. States, acting especially through competent international organizations or diplomatic conference, shall endeavour to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce (Draft) First Edition, 2011 ( Annex III - 100 )
Notes in Constitutional Law I (Atty. Berne Guerrero) and control such pollution. SECTION 6. ENFORCEMENT Article 213 Enforcement with respect to pollution from land-based sources States shall enforce their laws and regulations adopted in accordance with Article 207 and shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organizations or diplomatic conference to prevent, reduce and control pollution of the marine environment from land-based sources. Article 214 Enforcement with respect to pollution from seabed activities States shall enforce their laws and regulations adopted in accordance with Article 208 and shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organizations or diplomatic conference to prevent, reduce and control pollution of the marine environment arising from or in connection with seabed activities subject to their jurisdiction and from artificial islands, installations and structures under their jurisdiction, pursuant to Articles 60 and 80. Article 215 Enforcement with respect to pollution from activities in the Area Enforcement of international rules, regulations and procedures established in accordance with Part XI to prevent, reduce and control pollution of the marine environment from activities in the Area shall be governed by that Part. Article 216 Enforcement with respect to pollution by dumping 1. Laws and regulations adopted in accordance with this Convention and applicable international rules and standards established through competent international organizations or diplomatic conference for the prevention, reduction and control of pollution of the marine environment by dumping shall be enforced: (a) by the coastal State with regard to dumping within its territorial sea or its exclusive economic zone or onto its continental shelf; (b)
by the flag State with regard to vessels flying its flag or vessels or aircraft of its registry;
(c) by any State with regard to acts of loading of wastes or other matter occurring within its territory or at its off-shore terminals. 2. No State shall be obliged by virtue of this Article to institute proceedings when another State has already instituted proceedings in accordance with this Article . Article 217 Enforcement by flag States 1. States shall ensure compliance by vessels flying their flag or of their registry with applicable international rules and standards, established through the competent international organization or general diplomatic conference, and with their laws and regulations adopted in accordance with this Convention for the prevention, reduction and control of pollution of the marine environment from vessels and shall accordingly adopt laws and regulations and take other measures necessary for their implementation. Flag States shall provide for the effective enforcement of such rules, standards, laws and regulations, irrespective of where a violation occurs.
(Draft) First Edition, 2011 ( Annex III - 101 )
Notes in Constitutional Law I (Atty. Berne Guerrero) 2. States shall, in particular, take appropriate measures in order to ensure that vessels flying their flag or of their registry are prohibited from sailing, until they can proceed to sea in compliance with the requirements of the international rules and standards referred to in paragraph 1, including requirements in respect of design, construction, equipment and manning of vessels. 3. States shall ensure that vessels flying their flag or of their registry carry on board certificates required by and issued pursuant to international rules and standards referred to in paragraph 1. States shall ensure that vessels flying their flag are periodically inspected in order to verify that such certificates are in conformity with the actual condition of the vessels. These certificates shall be accepted by other States as evidence of the condition of the vessels and shall be regarded as having the same force as certificates issued by them, unless there are clear grounds for believing that the condition of the vessel does not correspond substantially with the particulars of the certificates. 4. If a vessel commits a violation of rules and standards established through the competent international organization or general diplomatic conference, the flag State, without prejudice to Articles 218, 220 and 228, shall provide for immediate investigation and where appropriate institute proceedings in respect of the alleged violation irrespective of where the violation occurred or where the pollution caused by such violation has occurred or has been spotted. 5. Flag States conducting an investigation of the violation may request the assistance of any other State whose cooperation could be useful in clarifying the circumstances of the case. States shall endeavour to meet appropriate requests of flag States. 6. States shall, at the written request of any State, investigate any violation alleged to have been committed by vessels flying their flag. If satisfied that sufficient evidence is available to enable proceedings to be brought in respect of the alleged violation, flag States shall without delay institute such proceedings in accordance with their laws. 7. Flag States shall promptly inform the requesting State and the competent international organization of the action taken and its outcome. Such information shall be available to all States. 8. Penalties provided for by the laws and regulations of States for vessels flying their flag shall be adequate in severity to discourage violations wherever they occur. Article 218 Enforcement by port States 1. When a vessel is voluntarily within a port or at an off-shore terminal of a State, that State may undertake investigations and, where the evidence so warrants, institute proceedings in respect of any discharge from that vessel outside the internal waters, territorial sea or exclusive economic zone of that State in violation of applicable international rules and standards established through the competent international organization or general diplomatic conference. 2. No proceedings pursuant to paragraph 1 shall be instituted in respect of a discharge violation in the internal waters, territorial sea or exclusive economic zone of another State unless requested by that State, the flag State, or a State damaged or threatened by the discharge violation, or unless the violation has caused or is likely to cause pollution in the internal waters, territorial sea or exclusive economic zone of the State instituting the proceedings. 3. When a vessel is voluntarily within a port or at an off-shore terminal of a State, that State shall, as far as practicable, comply with requests from any State for investigation of a discharge violation referred to in paragraph 1, believed to have occurred in, caused, or threatened damage to the internal waters, territorial sea or exclusive economic zone of the requesting State. It shall likewise, as far as practicable, comply with requests from the flag State for investigation of such a violation, irrespective of where the violation occurred. 4. The records of the investigation carried out by a port State pursuant to this Article shall be transmitted upon request to the flag State or to the coastal State. Any proceedings instituted by the port State on the basis of such an investigation may, subject to section 7, be suspended at the request of the coastal State when the violation has occurred within its internal waters, territorial sea or exclusive economic zone. The evidence and records of the case, together with any bond or other financial security posted with the authorities of the port State, shall in that event be transmitted to the (Draft) First Edition, 2011 ( Annex III - 102 )
Notes in Constitutional Law I (Atty. Berne Guerrero) coastal State. Such transmittal shall preclude the continuation of proceedings in the port State. Article 219 Measures relating to seaworthiness of vessels to avoid pollution Subject to section 7, States which, upon request or on their own initiative, have ascertained that a vessel within one of their ports or at one of their off-shore terminals is in violation of applicable international rules and standards relating to seaworthiness of vessels and thereby threatens damage to the marine environment shall, as far as practicable, take administrative measures to prevent the vessel from sailing. Such States may permit the vessel to proceed only to the nearest appropriate repair yard and, upon removal of the causes of the violation, shall permit the vessel to continue immediately. Article 220 Enforcement by coastal States 1. When a vessel is voluntarily within a port or at an off-shore terminal of a State, that State may, subject to section 7, institute proceedings in respect of any violation of its laws and regulations adopted in accordance with this Convention or applicable international rules and standards for the prevention, reduction and control of pollution from vessels when the violation has occurred within the territorial sea or the exclusive economic zone of that State. 2. Where there are clear grounds for believing that a vessel navigating in the territorial sea of a State has, during its passage therein, violated laws and regulations of that State adopted in accordance with this Convention or applicable international rules and standards for the prevention, reduction and control of pollution from vessels, that State, without prejudice to the application of the relevant provisions of Part II, section 3, may undertake physical inspection of the vessel relating to the violation and may, where the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws, subject to the provisions of section 7. 3. Where there are clear grounds for believing that a vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation of applicable international rules and standards for the prevention, reduction and control of pollution from vessels or laws and regulations of that State conforming and giving effect to such rules and standards, that State may require the vessel to give information regarding its identity and port of registry, its last and its next port of call and other relevant information required to establish whether a violation has occurred. 4. States shall adopt laws and regulations and take other measures so that vessels flying their flag comply with requests for information pursuant to paragraph 3. 5. Where there are clear grounds for believing that a vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation referred to in paragraph 3 resulting in a substantial discharge causing or threatening significant pollution of the marine environment, that State may undertake physical inspection of the vessel for matters relating to the violation if the vessel has refused to give information or if the information supplied by the vessel is manifestly at variance with the evident factual situation and if the circumstances of the case justify such inspection. 6. Where there is clear objective evidence that a vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation referred to in paragraph 3 resulting in a discharge causing major damage or threat of major damage to the coastline or related interests of the coastal State, or to any resources of its territorial sea or exclusive economic zone, that State may, subject to section 7, provided that the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws. 7. Notwithstanding the provisions of paragraph 6, whenever appropriate procedures have been established, either through the competent international organization or as otherwise agreed, whereby compliance with requirements for bonding or other appropriate financial security has been assured, the coastal State if bound by such procedures shall allow the vessel to proceed. 8.
The provisions of paragraphs 3, 4, 5, 6and 7 also apply in respect of national laws and regulations adopted (Draft) First Edition, 2011 ( Annex III - 103 )
Notes in Constitutional Law I (Atty. Berne Guerrero) pursuant to Article 211, paragraph 6. Article 221 Measures to avoid pollution arising from maritime casualties 1. Nothing in this Part shall prejudice the right of States, pursuant to international law, both customary and conventional, to take and enforce measures beyond the territorial sea proportionate to the actual or threatened damage to protect their coastline or related interests, including fishing, from pollution or threat of pollution following upon a maritime casualty or acts relating to such a casualty, which may reasonably be expected to result in major harmful consequences. 2. For the purposes of this Article , "maritime casualty" means a collision of vessels, stranding or other incident of navigation, or other occurrence on board a vessel or external to it resulting in material damage or imminent threat of material damage to a vessel or cargo. Article 222 Enforcement with respect to pollution from or through the atmosphere States shall enforce, within the air space under their sovereignty or with regard to vessels flying their flag or vessels or aircraft of their registry, their laws and regulations adopted in accordance with Article 212, paragraph 1, and with other provisions of this Convention and shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organizations or diplomatic conference to prevent, reduce and control pollution of the marine environment from or through the atmosphere, in conformity with all relevant international rules and standards concerning the safety of air navigation. SECTION 7. SAFEGUARDS Article 223 Measures to facilitate proceedings In proceedings instituted pursuant to this Part, States shall take measures to facilitate the hearing of witnesses and the admission of evidence submitted by authorities of another State, or by the competent international organization, and shall facilitate the attendance at such proceedings of official representatives of the competent international organization, the flag State and any State affected by pollution arising out of any violation. The official representatives attending such proceedings shall have such rights and duties as may be provided under national laws and regulations or international law. Article 224 Exercise of powers of enforcement The powers of enforcement against foreign vessels under this Part may only be exercised by officials or by warships, military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect. Article 225 Duty to avoid adverse consequences in the exercise of the powers of enforcement In the exercise under this Convention of their powers of enforcement against foreign vessels, States shall not endanger the safety of navigation or otherwise create any hazard to a vessel, or bring it to an unsafe port or anchorage, or expose the marine environment to an unreasonable risk. Article 226 Investigation of foreign vessels 1.
(a)
States shall not delay a foreign vessel longer than is essential for purposes of the investigations (Draft) First Edition, 2011 ( Annex III - 104 )
Notes in Constitutional Law I (Atty. Berne Guerrero) provided for in Articles 216, 218 and 220. Any physical inspection of a foreign vessel shall be limited to an examination of such certificates, records or other documents as the vessel is required to carry by generally accepted international rules and standards or of any similar documents which it is carrying; further physical inspection of the vessel may be undertaken only after such an examination and only when: (i) there are clear grounds for believing that the condition of the vessel or its equipment does not correspond substantially with the particulars of those documents; (ii)
the contents of such documents are not sufficient to confirm or verify a suspected violation; or
(iii)
the vessel is not carrying valid certificates and records.
(b) If the investigation indicates a violation of applicable laws and regulations or international rules and standards for the protection and preservation of the marine environment, release shall be made promptly subject to reasonable procedures such as bonding or other appropriate financial security. (c) Without prejudice to applicable international rules and standards relating to the seaworthiness of vessels, the release of a vessel may, whenever it would present an unreasonable threat of damage to the marine environment, be refused or made conditional upon proceeding to the nearest appropriate repair yard. Where release has been refused or made conditional, the flag State of the vessel must be promptly notified, and may seek release of the vessel in accordance with Part XV. 2. sea.
States shall cooperate to develop procedures for the avoidance of unnecessary physical inspection of vessels at Article 227 Non-discrimination with respect to foreign vessels
In exercising their rights and performing their duties under this Part, States shall not discriminate in form or in fact against vessels of any other State. Article 228 Suspension and restrictions on institution of proceedings 1. Proceedings to impose penalties in respect of any violation of applicable laws and regulations or international rules and standards relating to the prevention, reduction and control of pollution from vessels committed by a foreign vessel beyond the territorial sea of the State instituting proceedings shall be suspended upon the taking of proceedings to impose penalties in respect of corresponding charges by the flag State within six months of the date on which proceedings were first instituted, unless those proceedings relate to a case of major damage to the coastal State or the flag State in question has repeatedly disregarded its obligation to enforce effectively the applicable international rules and standards in respect of violations committed by its vessels. The flag State shall in due course make available to the State previously instituting proceedings a full dossier of the case and the records of the proceedings, whenever the flag State has requested the suspension of proceedings in accordance with this Article . When proceedings instituted by the flag State have been brought to a conclusion, the suspended proceedings shall be terminated. Upon payment of costs incurred in respect of such proceedings, any bond posted or other financial security provided in connection with the suspended proceedings shall be released by the coastal State. 2. Proceedings to impose penalties on foreign vessels shall not be instituted after the expiry of three years from the date on which the violation was committed, and shall not be taken by any State in the event of proceedings having been instituted by another State subject to the provisions set out in paragraph 1. 3. The provisions of this Article are without prejudice to the right of the flag State to take any measures, including proceedings to impose penalties, according to its laws irrespective of prior proceedings by another State. Article 229 Institution of civil proceedings (Draft) First Edition, 2011 ( Annex III - 105 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
Nothing in this Convention affects the institution of civil proceedings in respect of any claim for loss or damage resulting from pollution of the marine environment. Article 230 Monetary penalties and the observance of recognized rights of the accused 1. Monetary penalties only may be imposed with respect to violations of national laws and regulations or applicable international rules and standards for the prevention, reduction and control of pollution of the marine environment, committed by foreign vessels beyond the territorial sea. 2. Monetary penalties only may be imposed with respect to violations of national laws and regulations or applicable international rules and standards for the prevention, reduction and control of pollution of the marine environment, committed by foreign vessels in the territorial sea, except in the case of a wilful and serious act of pollution in the territorial sea. 3. In the conduct of proceedings in respect of such violations committed by a foreign vessel which may result in the imposition of penalties, recognized rights of the accused shall be observed. Article 231 Notification to the flag State and other States concerned States shall promptly notify the flag State and any other State concerned of any measures taken pursuant to section 6 against foreign vessels, and shall submit to the flag State all official reports concerning such measures. However, with respect to violations committed in the territorial sea, the foregoing obligations of the coastal State apply only to such measures as are taken in proceedings. The diplomatic agents or consular officers and where possible the maritime authority of the flag State, shall be immediately informed of any such measures taken pursuant to section 6 against foreign vessels. Article 232 Liability of States arising from enforcement measures States shall be liable for damage or loss attributable to them arising from measures taken pursuant to section 6 when such measures are unlawful or exceed those reasonably required in the light of available information. States shall provide for recourse in their courts for actions in respect of such damage or loss. Article 233 Safeguards with respect to straits used for international navigation Nothing in sections 5, 6 and 7 affects the legal regime of straits used for international navigation. However, if a foreign ship other than those referred to in section 10 has committed a violation of the laws and regulations referred to in Article 42, paragraph 1(a) and (b), causing or threatening major damage to the marine environment of the straits, the States bordering the straits may take appropriate enforcement measures and if so shall respect mutatis mutandis the provisions of this section. SECTION 8. ICE-COVERED AREAS Article 234 Ice-covered areas Coastal States have the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. Such laws and regulations shall have due regard to navigation and the (Draft) First Edition, 2011 ( Annex III - 106 )
Notes in Constitutional Law I (Atty. Berne Guerrero) protection and preservation of the marine environment based on the best available scientific evidence. SECTION 9. RESPONSIBILITY AND LIABILITY Article 235 Responsibility and liability 1. States are responsible for the fulfilment of their international obligations concerning the protection and preservation of the marine environment. They shall be liable in accordance with international law. 2. States shall ensure that recourse is available in accordance with their legal systems for prompt and adequate compensation or other relief in respect of damage caused by pollution of the marine environment by natural or juridical persons under their jurisdiction. 3. With the objective of assuring prompt and adequate compensation in respect of all damage caused by pollution of the marine environment, States shall cooperate in the implementation of existing international law and the further development of international law relating to responsibility and liability for the assessment of and compensation for damage and the settlement of related disputes, as well as, where appropriate, development of criteria and procedures for payment of adequate compensation, such as compulsory insurance or compensation funds. SECTION 10. SOVEREIGN IMMUNITY Article 236 Sovereign immunity The provisions of this Convention regarding the protection and preservation of the marine environment do not apply to any warship, naval auxiliary, other vessels or aircraft owned or operated by a State and used, for the time being, only on government non-commercial service. However, each State shall ensure, by the adoption of appropriate measures not impairing operations or operational capabilities of such vessels or aircraft owned or operated by it, that such vessels or aircraft act in a manner consistent, so far as is reasonable and practicable, with this Convention. SECTION 11. OBLIGATIONS UNDER OTHER CONVENTIONS ON THE PROTECTION AND PRESERVATION OF THE MARINE ENVIRONMENT Article 237 Obligations under other conventions on the protection and preservation of the marine environment 1. The provisions of this Part are without prejudice to the specific obligations assumed by States under special conventions and agreements concluded previously which relate to the protection and preservation of the marine environment and to agreements which may be concluded in furtherance of the general principles set forth in this Convention. 2. Specific obligations assumed by States under special conventions, with respect to the protection and preservation of the marine environment, should be carried out in a manner consistent with the general principles and objectives of this Convention. PART XIII. MARINE SCIENTIFIC RESEARCH SECTION 1. GENERAL PROVISIONS Article 238 (Draft) First Edition, 2011 ( Annex III - 107 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Right to conduct marine scientific research All States, irrespective of their geographical location, and competent international organizations have the right to conduct marine scientific research subject to the rights and duties of other States as provided for in this Convention. Article 239 Promotion of marine scientific research States and competent international organizations shall promote and facilitate the development and conduct of marine scientific research in accordance with this Convention. Article 240 General principles for the conduct of marine scientific research In the conduct of marine scientific research the following principles shall apply: (a)
marine scientific research shall be conducted exclusively for peaceful purposes;
(b) marine scientific research shall be conducted with appropriate scientific methods and means compatible with this Convention; (c) marine scientific research shall not unjustifiably interfere with other legitimate uses of the sea compatible with this Convention and shall be duly respected in the course of such uses; (d) marine scientific research shall be conducted in compliance with all relevant regulations adopted in conformity with this Convention including those for the protection and preservation of the marine environment. Article 241 Non-recognition of marine scientific research activities as the legal basis for claims Marine scientific research activities shall not constitute the legal basis for any claim to any part of the marine environment or its resources. SECTION 2. INTERNATIONAL COOPERATION Article 242 Promotion of international cooperation 1. States and competent international organizations shall, in accordance with the principle of respect for sovereignty and jurisdiction and on the basis of mutual benefit, promote international cooperation in marine scientific research for peaceful purposes. 2. In this context, without prejudice to the rights and duties of States under this Convention, a State, in the application of this Part, shall provide, as appropriate, other States with a reasonable opportunity to obtain from it, or with its cooperation, information necessary to prevent and control damage to the health and safety of persons and to the marine environment. Article 243 Creation of favourable conditions States and competent international organizations shall cooperate, through the conclusion of bilateral and multilateral agreements, to create favourable conditions for the conduct of marine scientific research in the marine environment and to integrate the efforts of scientists in studying the essence of phenomena and processes occurring in the marine environment and the interrelations between them.
(Draft) First Edition, 2011 ( Annex III - 108 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Article 244 Publication and dissemination of information and knowledge 1. States and competent international organizations shall, in accordance with this Convention, make available by publication and dissemination through appropriate channels information on proposed major programmes and their objectives as well as knowledge resulting from marine scientific research. 2. For this purpose, States, both individually and in cooperation with other States and with competent international organizations, shall actively promote the flow of scientific data and information and the transfer of knowledge resulting from marine scientific research, especially to developing States, as well as the strengthening of the autonomous marine scientific research capabilities of developing States through, inter alia, programmes to provide adequate education and training of their technical and scientific personnel. SECTION 3. CONDUCT AND PROMOTION OF MARINE SCIENTIFIC RESEARCH Article 245 Marine scientific research in the territorial sea Coastal States, in the exercise of their sovereignty, have the exclusive right to regulate, authorize and conduct marine scientific research in their territorial sea. Marine scientific research therein shall be conducted only with the express consent of and under the conditions set forth by the coastal State. Article 246 Marine scientific research in the exclusive economic zone and on the continental shelf 1. Coastal States, in the exercise of their jurisdiction, have the right to regulate, authorize and conduct marine scientific research in their exclusive economic zone and on their continental shelf in accordance with the relevant provisions of this Convention. 2. Marine scientific research in the exclusive economic zone and on the continental shelf shall be conducted with the consent of the coastal State. 3. Coastal States shall, in normal circumstances, grant their consent for marine scientific research projects by other States or competent international organizations in their exclusive economic zone or on their continental shelf to be carried out in accordance with this Convention exclusively for peaceful purposes and in order to increase scientific knowledge of the marine environment for the benefit of all mankind. To this end, coastal States shall establish rules and procedures ensuring that such consent will not be delayed or denied unreasonably. 4. For the purposes of applying paragraph 3, normal circumstances may exist in spite of the absence of diplomatic relations between the coastal State and the researching State. 5. Coastal States may however in their discretion withhold their consent to the conduct of a marine scientific research project of another State or competent international organization in the exclusive economic zone or on the continental shelf of the coastal State if that project: (a) is of direct significance for the exploration and exploitation of natural resources, whether living or nonliving; (b) involves drilling into the continental shelf, the use of explosives or the introduction of harmful substances into the marine environment; (c) involves the construction, operation or use of artificial islands, installations and structures referred to in Articles 60 and 80; (d)
contains information communicated pursuant to Article 248 regarding the nature and objectives of the (Draft) First Edition, 2011 ( Annex III - 109 )
Notes in Constitutional Law I (Atty. Berne Guerrero) project which is inaccurate or if the researching State or competent international organization has outstanding obligations to the coastal State from a prior research project. 6. Notwithstanding the provisions of paragraph 5, coastal States may not exercise their discretion to withhold consent under subparagraph (a) of that paragraph in respect of marine scientific research projects to be undertaken in accordance with the provisions of this Part on the continental shelf, beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, outside those specific areas which coastal States may at any time publicly designate as areas in which exploitation or detailed exploratory operations focused on those areas are occurring or will occur within a reasonable period of time. Coastal States shall give reasonable notice of the designation of such areas, as well as any modifications thereto, but shall not be obliged to give details of the operations therein. 7. The provisions of paragraph 6 are without prejudice to the rights of coastal States over the continental shelf as established in Article 77. 8. Marine scientific research activities referred to in this Article shall not unjustifiably interfere with activities undertaken by coastal States in the exercise of their sovereign rights and jurisdiction provided for in this Convention. Article 247 Marine scientific research projects undertaken by or under the auspices of international organizations A coastal State which is a member of or has a bilateral agreement with an international organization, and in whose exclusive economic zone or on whose continental shelf that organization wants to carry out a marine scientific research project, directly or under its auspices, shall be deemed to have authorized the project to be carried out in conformity with the agreed specifications if that State approved the detailed project when the decision was made by the organization for the undertaking of the project, or is willing to participate in it, and has not expressed any objection within four months of notification of the project by the organization to the coastal State. Article 248 Duty to provide information to the coastal State States and competent international organizations which intend to undertake marine scientific research in the exclusive economic zone or on the continental shelf of a coastal State shall, not less than six months in advance of the expected starting date of the marine scientific research project, provide that State with a full description of: (a)
the nature and objectives of the project;
(b) the method and means to be used, including name, tonnage, type and class of vessels and a description of scientific equipment; (c)
the precise geographical areas in which the project is to be conducted;
(d) the expected date of first appearance and final departure of the research vessels, or deployment of the equipment and its removal, as appropriate; (e)
the name of the sponsoring institution, its director, and the person in charge of the project; and
(f) the extent to which it is considered that the coastal State should be able to participate or to be represented in the project. Article 249 Duty to comply with certain conditions 1. States and competent international organizations when undertaking marine scientific research in the exclusive economic zone or on the continental shelf of a coastal State shall comply with the following conditions: (a)
ensure the right of the coastal State, if it so desires, to participate or be represented in the marine (Draft) First Edition, 2011 ( Annex III - 110 )
Notes in Constitutional Law I (Atty. Berne Guerrero) scientific research project, especially on board research vessels and other craft or scientific research installations, when practicable, without payment of any remuneration to the scientists of the coastal State and without obligation to contribute towards the costs of the project; (b) provide the coastal State, at its request, with preliminary reports, as soon as practicable, and with the final results and conclusions after the completion of the research; (c) undertake to provide access for the coastal State, at its request, to all data and samples derived from the marine scientific research project and likewise to furnish it with data which may be copied and samples which may be divided without detriment to their scientific value; (d) if requested, provide the coastal State with an assessment of such data, samples and research results or provide assistance in their assessment or interpretation; (e) ensure, subject to paragraph 2, that the research results are made internationally available through appropriate national or international channels, as soon as practicable; (f)
inform the coastal State immediately of any major change in the research programme;
(g) unless otherwise agreed, remove the scientific research installations or equipment once the research is completed. 2. This Article is without prejudice to the conditions established by the laws and regulations of the coastal State for the exercise of its discretion to grant or withhold consent pursuant to Article 246, paragraph 5, including requiring prior agreement for making internationally available the research results of a project of direct significance for the exploration and exploitation of natural resources. Article 250 Communications concerning marine scientific research projects Communications concerning the marine scientific research projects shall be made through appropriate official channels, unless otherwise agreed. Article 251 General criteria and guidelines States shall seek to promote through competent international organizations the establishment of general criteria and guidelines to assist States in ascertaining the nature and implications of marine scientific research. Article 252 Implied consent States or competent international organizations may proceed with a marine scientific research project six months after the date upon which the information required pursuant to Article 248 was provided to the coastal State unless within four months of the receipt of the communication containing such information the coastal State has informed the State or organization conducting the research that: (a)
it has withheld its consent under the provisions of Article 246; or
(b) the information given by that State or competent international organization regarding the nature or objectives of the project does not conform to the manifestly evident facts; or (c) it requires supplementary information relevant to conditions and the information provided for under Articles 248 and 249; or (d)
outstanding obligations exist with respect to a previous marine scientific research project carried out by that (Draft) First Edition, 2011 ( Annex III - 111 )
Notes in Constitutional Law I (Atty. Berne Guerrero) State or organization, with regard to conditions established in Article 249. Article 253 Suspension or cessation of marine scientific research activities 1. A coastal State shall have the right to require the suspension of any marine scientific research activities in progress within its exclusive economic zone or on its continental shelf if: (a) the research activities are not being conducted in accordance with the information communicated as provided under Article 248 upon which the consent of the coastal State was based; or (b) the State or competent international organization conducting the research activities fails to comply with the provisions of Article 249 concerning the rights of the coastal State with respect to the marine scientific research project. 2. A coastal State shall have the right to require the cessation of any marine scientific research activities in case of any non-compliance with the provisions of Article 248 which amounts to a major change in the research project or the research activities. 3. A coastal State may also require cessation of marine scientific research activities if any of the situations contemplated in paragraph 1 are not rectified within a reasonable period of time. 4. Following notification by the coastal State of its decision to order suspension or cessation, States or competent international organizations authorized to conduct marine scientific research activities shall terminate the research activities that are the subject of such a notification. 5. An order of suspension under paragraph 1 shall be lifted by the coastal State and the marine scientific research activities allowed to continue once the researching State or competent international organization has complied with the conditions required under Articles 248 and 249. Article 254 Rights of neighbouring land-locked and geographically disadvantaged States 1. States and competent international organizations which have submitted to a coastal State a project to undertake marine scientific research referred to in Article 246, paragraph 3, shall give notice to the neighbouring land-locked and geographically disadvantaged States of the proposed research project, and shall notify the coastal State thereof. 2. After the consent has been given for the proposed marine scientific research project by the coastal State concerned, in accordance with Article 246 and other relevant provisions of this Convention, States and competent international organizations undertaking such a project shall provide to the neighbouring land-locked and geographically disadvantaged States, at their request and when appropriate, relevant information as specified in Article 248 and Article 249, paragraph 1(f). 3. The neighbouring land-locked and geographically disadvantaged States referred to above shall, at their request, be given the opportunity to participate, whenever feasible, in the proposed marine scientific research project through qualified experts appointed by them and not objected to by the coastal State, in accordance with the conditions agreed for the project, in conformity with the provisions of this Convention, between the coastal State concerned and the State or competent international organizations conducting the marine scientific research. 4. States and competent international organizations referred to in paragraph 1 shall provide to the abovementioned land-locked and geographically disadvantaged States, at their request, the information and assistance specified in Article 249, paragraph 1(d), subject to the provisions of Article 249, paragraph 2. Article 255 Measures to facilitate marine scientific research and assist research vessels
(Draft) First Edition, 2011 ( Annex III - 112 )
Notes in Constitutional Law I (Atty. Berne Guerrero) States shall endeavour to adopt reasonable rules, regulations and procedures to promote and facilitate marine scientific research conducted in accordance with this Convention beyond their territorial sea and, as appropriate, to facilitate, subject to the provisions of their laws and regulations, access to their harbours and promote assistance for marine scientific research vessels which comply with the relevant provisions of this Part. Article 256 Marine scientific research in the Area All States, irrespective of their geographical location, and competent international organizations have the right, in conformity with the provisions of Part XI, to conduct marine scientific research in the Area. Article 257 Marine scientific research in the water column beyond the exclusive economic zone All States, irrespective of their geographical location, and competent international organizations have the right, in conformity with this Convention, to conduct marine scientific research in the water column beyond the limits of the exclusive economic zone. SECTION 4. SCIENTIFIC RESEARCH INSTALLATIONS OR EQUIPMENT IN THE MARINE ENVIRONMENT Article 258 Deployment and use The deployment and use of any type of scientific research installations or equipment in any area of the marine environment shall be subject to the same conditions as are prescribed in this Convention for the conduct of marine scientific research in any such area. Article 259 Legal status The installations or equipment referred to in this section do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf. Article 260 Safety zones Safety zones of a reasonable breadth not exceeding a distance of 500 metres may be created around scientific research installations in accordance with the relevant provisions of this Convention. All States shall ensure that such safety zones are respected by their vessels. Article 261 Non-interference with shipping routes The deployment and use of any type of scientific research installations or equipment shall not constitute an obstacle to established international shipping routes. Article 262 Identification markings and warning signals Installations or equipment referred to in this section shall bear identification markings indicating the State of registry or the international organization to which they belong and shall have adequate internationally agreed warning signals to ensure safety at sea and the safety of air navigation, taking into account rules and standards established by competent international organizations.
(Draft) First Edition, 2011 ( Annex III - 113 )
Notes in Constitutional Law I (Atty. Berne Guerrero) SECTION 5. RESPONSIBILITY AND LIABILITY Article 263 Responsibility and liability 1. States and competent international organizations shall be responsible for ensuring that marine scientific research, whether undertaken by them or on their behalf, is conducted in accordance with this Convention. 2. States and competent international organizations shall be responsible and liable for the measures they take in contravention of this Convention in respect of marine scientific research conducted by other States, their natural or juridical persons or by competent international organizations, and shall provide compensation for damage resulting from such measures. 3. States and competent international organizations shall be responsible and liable pursuant to Article 235 for damage caused by pollution of the marine environment arising out of marine scientific research undertaken by them or on their behalf. SECTION 6. SETTLEMENT OF DISPUTES AND INTERIM MEASURES Article 264 Settlement of disputes Disputes concerning the interpretation or application of the provisions of this Convention with regard to marine scientific research shall be settled in accordance with Part XV, sections 2 and 3. Article 265 Interim measures Pending settlement of a dispute in accordance with Part XV, sections 2 and 3, the State or competent international organization authorized to conduct a marine scientific research project shall not allow research activities to commence or continue without the express consent of the coastal State concerned. PART XIV. DEVELOPMENT AND TRANSFER OF MARINE TECHNOLOGY SECTION 1. GENERAL PROVISIONS Article 266 Promotion of the development and transfer of marine technology 1. States, directly or through competent international organizations, shall cooperate in accordance with their capabilities to promote actively the development and transfer of marine science and marine technology on fair and reasonable terms and conditions. 2. States shall promote the development of the marine scientific and technological capacity of States which may need and request technical assistance in this field, particularly developing States, including land-locked and geographically disadvantaged States, with regard to the exploration, exploitation, conservation and management of marine resources, the protection and preservation of the marine environment, marine scientific research and other activities in the marine environment compatible with this Convention, with a view to accelerating the social and economic development of the developing States. 3. States shall endeavour to foster favourable economic and legal conditions for the transfer of marine technology for the benefit of all parties concerned on an equitable basis. (Draft) First Edition, 2011 ( Annex III - 114 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
Article 267 Protection of legitimate interests States, in promoting cooperation pursuant to Article 266, shall have due regard for all legitimate interests including, inter alia, the rights and duties of holders, suppliers and recipients of marine technology. Article 268 Basic objectives States, directly or through competent international organizations, shall promote: (a) the acquisition, evaluation and dissemination of marine technological knowledge and facilitate access to such information and data; (b)
the development of appropriate marine technology;
(c)
the development of the necessary technological infrastructure to facilitate the transfer of marine technology;
(d) the development of human resources through training and education of nationals of developing States and countries and especially the nationals of the least developed among them; (e)
international cooperation at all levels, particularly at the regional, subregional and bilateral levels. Article 269 Measures to achieve the basic objectives
In order to achieve the objectives referred to in Article 268, States, directly or through competent international organizations, shall endeavour, inter alia, to: (a) establish programmes of technical cooperation for the effective transfer of all kinds of marine technology to States which may need and request technical assistance in this field, particularly the developing land-locked and geographically disadvantaged States, as well as other developing States which have not been able either to establish or develop their own technological capacity in marine science and in the exploration and exploitation of marine resources or to develop the infrastructure of such technology; (b) promote favourable conditions for the conclusion of agreements, contracts and other similar arrangements, under equitable and reasonable conditions; (c) hold conferences, seminars and symposia on scientific and technological subjects, in particular on policies and methods for the transfer of marine technology; (d)
promote the exchange of scientists and of technological and other experts;
(e)
undertake projects and promote joint ventures and other forms of bilateral and multilateral cooperation. SECTION 2. INTERNATIONAL COOPERATION Article 270 Ways and means of international cooperation
International cooperation for the development and transfer of marine technology shall be carried out, where feasible and appropriate, through existing bilateral, regional or multilateral programmes, and also through expanded and new programmes in order to facilitate marine scientific research, the transfer of marine technology, particularly in new fields, and appropriate international funding for ocean research and development. (Draft) First Edition, 2011 ( Annex III - 115 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
Article 271 Guidelines, criteria and standards States, directly or through competent international organizations, shall promote the establishment of generally accepted guidelines, criteria and standards for the transfer of marine technology on a bilateral basis or within the framework of international organizations and other fora, taking into account, in particular, the interests and needs of developing States. Article 272 Coordination of international programmes In the field of transfer of marine technology, States shall endeavour to ensure that competent international organizations coordinate their activities, including any regional or global programmes, taking into account the interests and needs of developing States, particularly land-locked and geographically disadvantaged States. Article 273 Cooperation with international organizations and the Authority States shall cooperate actively with competent international organizations and the Authority to encourage and facilitate the transfer to developing States, their nationals and the Enterprise of skills and marine technology with regard to activities in the Area. Article 274 Objectives of the Authority Subject to all legitimate interests including, inter alia, the rights and duties of holders, suppliers and recipients of technology, the Authority, with regard to activities in the Area, shall ensure that: (a) on the basis of the principle of equitable geographical distribution, nationals of developing States, whether coastal, land-locked or geographically disadvantaged, shall be taken on for the purposes of training as members of the managerial, research and technical staff constituted for its undertakings; (b) the technical documentation on the relevant equipment, machinery, devices and processes is made available to all States, in particular developing States which may need and request technical assistance in this field; (c) adequate provision is made by the Authority to facilitate the acquisition of technical assistance in the field of marine technology by States which may need and request it, in particular developing States, and the acquisition by their nationals of the necessary skills and know-how, including professional training; (d) States which may need and request technical assistance in this field, in particular developing States, are assisted in the acquisition of necessary equipment, processes, plant and other technical know-how through any financial arrangements provided for in this Convention. SECTION 3. NATIONAL AND REGIONAL MARINE SCIENTIFIC AND TECHNOLOGICAL CENTRES Article 275 Establishment of national centres 1. States, directly or through competent international organizations and the Authority, shall promote the establishment, particularly in developing coastal States, of national marine scientific and technological research centres and the strengthening of existing national centres, in order to stimulate and advance the conduct of marine scientific research by developing coastal States and to enhance their national capabilities to utilize and preserve their marine resources for their economic benefit. 2.
States, through competent international organizations and the Authority, shall give adequate support to facilitate (Draft) First Edition, 2011 ( Annex III - 116 )
Notes in Constitutional Law I (Atty. Berne Guerrero) the establishment and strengthening of such national centres so as to provide for advanced training facilities and necessary equipment, skills and know-how as well as technical experts to such States which may need and request such assistance. Article 276 Establishment of regional centres 1. States, in coordination with the competent international organizations, the Authority and national marine scientific and technological research institutions, shall promote the establishment of regional marine scientific and technological research centres, particularly in developing States, in order to stimulate and advance the conduct of marine scientific research by developing States and foster the transfer of marine technology. 2. All States of a region shall cooperate with the regional centres therein to ensure the more effective achievement of their objectives. Article 277 Functions of regional centres The functions of such regional centres shall include, inter alia: (a) training and educational programmes at all levels on various aspects of marine scientific and technological research, particularly marine biology, including conservation and management of living resources, oceanography, hydrography, engineering, geological exploration of the seabed, mining and desalination technologies; (b)
management studies;
(c) study programmes related to the protection and preservation of the marine environment and the prevention, reduction and control of pollution; (d)
organization of regional conferences, seminars and symposia;
(e)
acquisition and processing of marine scientific and technological data and information;
(f)
prompt dissemination of results of marine scientific and technological research in readily available publications;
(g) publicizing national policies with regard to the transfer of marine technology and systematic comparative study of those policies; (h) compilation and systematization of information on the marketing of technology and on contracts and other arrangements concerning patents; (I)
technical cooperation with other States of the region. SECTION 4. COOPERATION AMONG INTERNATIONAL ORGANIZATIONS Article 278 Cooperation among international organizations
The competent international organizations referred to in this Part and in Part XIII shall take all appropriate measures to ensure, either directly or in close cooperation among themselves, the effective discharge of their functions and responsibilities under this Part. PART XV. SETTLEMENT OF DISPUTES
(Draft) First Edition, 2011 ( Annex III - 117 )
Notes in Constitutional Law I (Atty. Berne Guerrero) SECTION 1. GENERAL PROVISIONS Article 279 Obligation to settle disputes by peaceful means States Parties shall settle any dispute between them concerning the interpretation or application of this Convention by peaceful means in accordance with Article 2, paragraph 3, of the Charter of the United Nations and, to this end, shall seek a solution by the means indicated in Article 33, paragraph 1, of the Charter. Article 280 Settlement of disputes by any peaceful means chosen by the parties Nothing in this Part impairs the right of any States Parties to agree at any time to settle a dispute between them concerning the interpretation or application of this Convention by any peaceful means of their own choice. Article 281 Procedure where no settlement has been reached by the parties 1. If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure. 2.
If the parties have also agreed on a time-limit, paragraph 1 applies only upon the expiration of that time-limit. Article 282 Obligations under general, regional or bilateral agreements
If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree. Article 283 Obligation to exchange views 1. When a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means. 2. The parties shall also proceed expeditiously to an exchange of views where a procedure for the settlement of such a dispute has been terminated without a settlement or where a settlement has been reached and the circumstances require consultation regarding the manner of implementing the settlement. Article 284 Conciliation 1. A State Party which is a party to a dispute concerning the interpretation or application of this Convention may invite the other party or parties to submit the dispute to conciliation in accordance with the procedure under Annex V, section 1, or another conciliation procedure. 2. If the invitation is accepted and if the parties agree upon the conciliation procedure to be applied, any party may submit the dispute to that procedure. 3.
If the invitation is not accepted or the parties do not agree upon the procedure, the conciliation proceedings shall (Draft) First Edition, 2011 ( Annex III - 118 )
Notes in Constitutional Law I (Atty. Berne Guerrero) be deemed to be terminated. 4. Unless the parties otherwise agree, when a dispute has been submitted to conciliation, the proceedings may be terminated only in accordance with the agreed conciliation procedure. Article 285 Application of this section to disputes submitted pursuant to Part XI This section applies to any dispute which pursuant to Part XI, section 5, is to be settled in accordance with procedures provided for in this Part. If an entity other than a State Party is a party to such a dispute, this section applies mutatis mutandis. SECTION 2. COMPULSORY PROCEDURES ENTAILING BINDING DECISIONS Article 286 Application of procedures under this section Subject to section 3, any dispute concerning the interpretation or application of this Convention shall, where no settlement has been reached by recourse to section 1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section. Article 287 Choice of procedure 1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention: (a)
the International Tribunal for the Law of the Sea established in accordance with Annex VI;
(b)
the International Court of Justice;
(c)
an arbitral tribunal constituted in accordance with Annex VII;
(d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein. 2. A declaration made under paragraph 1 shall not affect or be affected by the obligation of a State Party to accept the jurisdiction of the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea to the extent and in the manner provided for in Part XI, section 5. 3. A State Party, which is a party to a dispute not covered by a declaration in force, shall be deemed to have accepted arbitration in accordance with Annex VII. 4. If the parties to a dispute have accepted the same procedure for the settlement of the dispute, it may be submitted only to that procedure, unless the parties otherwise agree. 5. If the parties to a dispute have not accepted the same procedure for the settlement of the dispute, it may be submitted only to arbitration in accordance with Annex VII, unless the parties otherwise agree. 6. A declaration made under paragraph 1 shall remain in force until three months after notice of revocation has been deposited with the Secretary-General of the United Nations. 7. A new declaration, a notice of revocation or the expiry of a declaration does not in any way affect proceedings pending before a court or tribunal having jurisdiction under this Article , unless the parties otherwise agree. (Draft) First Edition, 2011 ( Annex III - 119 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
8. Declarations and notices referred to in this Article shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the States Parties. Article 288 Jurisdiction 1. A court or tribunal referred to in Article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part. 2. A court or tribunal referred to in Article 287 shall also have jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of this Convention, which is submitted to it in accordance with the agreement. 3. The Seabed Disputes Chamber of the International Tribunal for the Law of the Sea established in accordance with Annex VI, and any other chamber or arbitral tribunal referred to in Part XI, section 5, shall have jurisdiction in any matter which is submitted to it in accordance therewith. 4. In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal. Article 289 Experts In any dispute involving scientific or technical matters, a court or tribunal exercising jurisdiction under this section may, at the request of a party or proprio motu, select in consultation with the parties no fewer than two scientific or technical experts chosen preferably from the relevant list prepared in accordance with Annex VIII, Article 2, to sit with the court or tribunal but without the right to vote. Article 290 Provisional measures 1. If a dispute has been duly submitted to a court or tribunal which considers that prima facie it has jurisdiction under this Part or Part XI, section 5, the court or tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision. 2. Provisional measures may be modified or revoked as soon as the circumstances justifying them have changed or ceased to exist. 3. Provisional measures may be prescribed, modified or revoked under this Article only at the request of a party to the dispute and after the parties have been given an opportunity to be heard. 4. The court or tribunal shall forthwith give notice to the parties to the dispute, and to such other States Parties as it considers appropriate, of the prescription, modification or revocation of provisional measures. 5. Pending the constitution of an arbitral tribunal to which a dispute is being submitted under this section, any court or tribunal agreed upon by the parties or, failing such agreement within two weeks from the date of the request for provisional measures, the International Tribunal for the Law of the Sea or, with respect to activities in the Area, the Seabed Disputes Chamber, may prescribe, modify or revoke provisional measures in accordance with this Article if it considers that prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires. Once constituted, the tribunal to which the dispute has been submitted may modify, revoke or affirm those provisional measures, acting in conformity with paragraphs 1 to 4. 6.
The parties to the dispute shall comply promptly with any provisional measures prescribed under this Article .
(Draft) First Edition, 2011 ( Annex III - 120 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Article 291 Access 1.
All the dispute settlement procedures specified in this Part shall be open to States Parties.
2. The dispute settlement procedures specified in this Part shall be open to entities other than States Parties only as specifically provided for in this Convention. Article 292 Prompt release of vessels and crews 1. Where the authorities of a State Party have detained a vessel flying the flag of another State Party and it is alleged that the detaining State has not complied with the provisions of this Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security, the question of release from detention may be submitted to any court or tribunal agreed upon by the parties or, failing such agreement within 10 days from the time of detention, to a court or tribunal accepted by the detaining State under Article 287 or to the International Tribunal for the Law of the Sea, unless the parties otherwise agree. 2.
The application for release may be made only by or on behalf of the flag State of the vessel.
3. The court or tribunal shall deal without delay with the application for release and shall deal only with the question of release, without prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or its crew. The authorities of the detaining State remain competent to release the vessel or its crew at any time. 4. Upon the posting of the bond or other financial security determined by the court or tribunal, the authorities of the detaining State shall comply promptly with the decision of the court or tribunal concerning the release of the vessel or its crew. Article 293 Applicable law 1. A court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention. 2. Paragraph l does not prejudice the power of the court or tribunal having jurisdiction under this section to decide a case ex aequo et bono, if the parties so agree. Article 294 Preliminary proceedings 1. A court or tribunal provided for in Article 287 to which an application is made in respect of a dispute referred to in Article 297 shall determine at the request of a party, or may determine proprio motu, whether the claim constitutes an abuse of legal process or whether prima facie it is well founded. If the court or tribunal determines that the claim constitutes an abuse of legal process or is prima facie unfounded, it shall take no further action in the case. 2. Upon receipt of the application, the court or tribunal shall immediately notify the other party or parties of the application, and shall fix a reasonable time-limit within which they may request it to make a determination in accordance with paragraph 1. 3. Nothing in this Article affects the right of any party to a dispute to make preliminary objections in accordance with the applicable rules of procedure. Article 295 Exhaustion of local remedies Any dispute between States Parties concerning the interpretation or application of this Convention may be submitted to (Draft) First Edition, 2011 ( Annex III - 121 )
Notes in Constitutional Law I (Atty. Berne Guerrero) the procedures provided for in this section only after local remedies have been exhausted where this is required by international law. Article 296 Finality and binding force of decisions 1. Any decision rendered by a court or tribunal having jurisdiction under this section shall be final and shall be complied with by all the parties to the dispute. 2. Any such decision shall have no binding force except between the parties and in respect of that particular dispute. SECTION 3. LIMITATIONS AND EXCEPTIONS TO APPLICABILITY OF SECTION 2 Article 297 imitations on applicability of section 2 1. Disputes concerning the interpretation or application of this Convention with regard to the exercise by a coastal State of its sovereign rights or jurisdiction provided for in this Convention shall be subject to the procedures provided for in section 2 in the following cases: (a) when it is alleged that a coastal State has acted in contravention of the provisions of this Convention in regard to the freedoms and rights of navigation, overflight or the laying of submarine cables and pipelines, or in regard to other internationally lawful uses of the sea specified in Article 58; (b) when it is alleged that a State in exercising the aforementioned freedoms, rights or uses has acted in contravention of this Convention or of laws or regulations adopted by the coastal State in conformity with this Convention and other rules of international law not incompatible with this Convention; or (c) when it is alleged that a coastal State has acted in contravention of specified international rules and standards for the protection and preservation of the marine environment which are applicable to the coastal State and which have been established by this Convention or through a competent international organization or diplomatic conference in accordance with this Convention. 2.
(a) Disputes concerning the interpretation or application of the provisions of this Convention with regard to marine scientific research shall be settled in accordance with section 2, except that the coastal State shall not be obliged to accept the submission to such settlement of any dispute arising out of: (i)
the exercise by the coastal State of a right or discretion in accordance with Article 246; or
(ii) a decision by the coastal State to order suspension or cessation of a research project in accordance with Article 253. (b) A dispute arising from an allegation by the researching State that with respect to a specific project the coastal State is not exercising its rights under Articles 246 and 253 in a manner compatible with this Convention shall be submitted, at the request of either party, to conciliation under Annex V, section 2, provided that the conciliation commission shall not call in question the exercise by the coastal State of its discretion to designate specific areas as referred to in Article 246, paragraph 6, or of its discretion to withhold consent in accordance with Article 246, paragraph 5. 3.
(a) Disputes concerning the interpretation or application of the provisions of this Convention with regard to fisheries shall be settled in accordance with section 2, except that the coastal State shall not be obliged to accept the submission to such settlement of any dispute relating to its sovereign rights with respect to the living resources in the exclusive economic zone or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and (Draft) First Edition, 2011 ( Annex III - 122 )
Notes in Constitutional Law I (Atty. Berne Guerrero) conditions established in its conservation and management laws and regulations. (b) Where no settlement has been reached by recourse to section 1 of this Part, a dispute shall be submitted to conciliation under Annex V, section 2, at the request of any party to the dispute, when it is alleged that: (i) a coastal State has manifestly failed to comply with its obligations to ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not seriously endangered; (ii) a coastal State has arbitrarily refused to determine, at the request of another State, the allowable catch and its capacity to harvest living resources with respect to stocks which that other State is interested in fishing; or (iii) a coastal State has arbitrarily refused to allocate to any State, under Articles 62, 69 and 70 and under the terms and conditions established by the coastal State consistent with this Convention, the whole or part of the surplus it has declared to exist. (c)
In no case shall the conciliation commission substitute its discretion for that of the coastal State.
(d) The report of the conciliation commission shall be communicated to the appropriate international organizations. (e) In negotiating agreements pursuant to Articles 69 and 70, States Parties, unless they otherwise agree, shall include a clause on measures which they shall take in order to minimize the possibility of a disagreement concerning the interpretation or application of the agreement, and on how they should proceed if a disagreement nevertheless arises. Article 298 Optional exceptions to applicability of section 2 1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State may, without prejudice to the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes: (a)
(i) disputes concerning the interpretation or application of Articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles, provided that a State having made such a declaration shall, when such a dispute arises subsequent to the entry into force of this Convention and where no agreement within a reasonable period of time is reached in negotiations between the parties, at the request of any party to the dispute, accept submission of the matter to conciliation under Annex V, section 2; and provided further that any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory shall be excluded from such submission; (ii) after the conciliation commission has presented its report, which shall state the reasons on which it is based, the parties shall negotiate an agreement on the basis of that report; if these negotiations do not result in an agreement, the parties shall, by mutual consent, submit the question to one of the procedures provided for in section 2, unless the parties otherwise agree; (iii) this subparagraph does not apply to any sea boundary dispute finally settled by an arrangement between the parties, or to any such dispute which is to be settled in accordance with a bilateral or multilateral agreement binding upon those parties;
(b) disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under Article 297, paragraph 2 or 3; (Draft) First Edition, 2011 ( Annex III - 123 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
(c) disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations, unless the Security Council decides to remove the matter from its agenda or calls upon the parties to settle it by the means provided for in this Convention. 2. A State Party which has made a declaration under paragraph 1 may at any time withdraw it, or agree to submit a dispute excluded by such declaration to any procedure specified in this Convention. 3. A State Party which has made a declaration under paragraph 1 shall not be entitled to submit any dispute falling within the excepted category of disputes to any procedure in this Convention as against another State Party, without the consent of that party. 4. If one of the States Parties has made a declaration under paragraph 1(a), any other State Party may submit any dispute falling within an excepted category against the declarant party to the procedure specified in such declaration. 5. A new declaration, or the withdrawal of a declaration, does not in any way affect proceedings pending before a court or tribunal in accordance with this Article , unless the parties otherwise agree. 6. Declarations and notices of withdrawal of declarations under this Article shall be deposited with the SecretaryGeneral of the United Nations, who shall transmit copies thereof to the States Parties. Article 299 Right of the parties to agree upon a procedure 1. A dispute excluded under Article 297 or excepted by a declaration made under Article 298 from the dispute settlement procedures provided for in section 2 may be submitted to such procedures only by agreement of the parties to the dispute. 2. Nothing in this section impairs the right of the parties to the dispute to agree to some other procedure for the settlement of such dispute or to reach an amicable settlement. PART XVI. GENERAL PROVISIONS Article 300 Good faith and abuse of rights States Parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right. Article 301 Peaceful uses of the seas In exercising their rights and performing their duties under this Convention, States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations. Article 302 Disclosure of information Without prejudice to the right of a State Party to resort to the procedures for the settlement of disputes provided for in this Convention, nothing in this Convention shall be deemed to require a State Party, in the fulfilment of its obligations under this Convention, to supply information the disclosure of which is contrary to the essential interests of its security. Article 303 Archaeological and historical objects found at sea (Draft) First Edition, 2011 ( Annex III - 124 )
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1. States have the duty to protect objects of an archaeological and historical nature found at sea and shall cooperate for this purpose. 2. In order to control traffic in such objects, the coastal State may, in applying Article 33, presume that their removal from the seabed in the zone referred to in that Article without its approval would result in an infringement within its territory or territorial sea of the laws and regulations referred to in that Article . 3. Nothing in this Article affects the rights of identifiable owners, the law of salvage or other rules of admiralty, or laws and practices with respect to cultural exchanges. 4. This Article is without prejudice to other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature. Article 304 Responsibility and liability for damage The provisions of this Convention regarding responsibility and liability for damage are without prejudice to the application of existing rules and the development of further rules regarding responsibility and liability under international law. PART XVII. FINAL PROVISIONS Article 305 Signature 1.
This Convention shall be open for signature by: (a)
all States;
(b)
Namibia, represented by the United Nations Council for Namibia;
(c) all self-governing associated States which have chosen that status in an act of self-determination supervised and approved by the United Nations in accordance with General Assembly resolution 1514 (XV) and which have competence over the matters governed by this Convention, including the competence to enter into treaties in respect of those matters; (d) all self-governing associated States which, in accordance with their respective instruments of association, have competence over the matters governed by this Convention, including the competence to enter into treaties in respect of those matters; (e) all territories which enjoy full internal self-government, recognized as such by the United Nations, but have not attained full independence in accordance with General Assembly resolution 1514 (XV) and which have competence over the matters governed by this Convention, including the competence to enter into treaties in respect of those matters; (f)
international organizations, in accordance with Annex IX.
2. This Convention shall remain open for signature until 9 December 1984 at the Ministry of Foreign Affairs of Jamaica and also, from 1 July 1983 until 9 December 1984, at United Nations Headquarters in New York. Article 306 Ratification and formal confirmation This Convention is subject to ratification by States and the other entities referred to in Article 305, paragraph l(b), (c), (d) (Draft) First Edition, 2011 ( Annex III - 125 )
Notes in Constitutional Law I (Atty. Berne Guerrero) and (e), and to formal confirmation, in accordance with Annex IX, by the entities referred to in Article 305, paragraph l(f). The instruments of ratification and of formal confirmation shall be deposited with the Secretary-General of the United Nations. Article 307 Accession This Convention shall remain open for accession by States and the other entities referred to in Article 305. Accession by the entities referred to in Article 305, paragraph l(f), shall be in accordance with Annex IX. The instruments of accession shall be deposited with the Secretary-General of the United Nations. Article 308 Entry into force 1. This Convention shall enter into force 12 months after the date of deposit of the sixtieth instrument of ratification or accession. 2. For each State ratifying or acceding to this Convention after the deposit of the sixtieth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day following the deposit of its instrument of ratification or accession, subject to paragraph 1. 3. The Assembly of the Authority shall meet on the date of entry into force of this Convention and shall elect the Council of the Authority. The first Council shall be constituted in a manner consistent with the purpose of Article 161 if the provisions of that Article cannot be strictly applied. 4. The rules, regulations and procedures drafted by the Preparatory Commission shall apply provisionally pending their formal adoption by the Authority in accordance with Part XI. 5. The Authority and its organs shall act in accordance with resolution II of the Third United Nations Conference on the Law of the Sea relating to preparatory investment and with decisions of the Preparatory Commission taken pursuant to that resolution. Article 309 Reservations and exceptions No reservations or exceptions may be made to this Convention unless expressly permitted by other Articles of this Convention. Article 310 Declarations and statements Article 309 does not preclude a State, when signing, ratifying or acceding to this Convention, from making declarations or statements, however phrased or named, with a view, inter alia, to the harmonization of its laws and regulations with the provisions of this Convention, provided that such declarations or statements do not purport to exclude or to modify the legal effect of the provisions of this Convention in their application to that State. Article 311 Relation to other conventions and international agreements 1. This Convention shall prevail, as between States Parties, over the Geneva Conventions on the Law of the Sea of 29 April 1958. 2. This Convention shall not alter the rights and obligations of States Parties which arise from other agreements compatible with this Convention and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention.
(Draft) First Edition, 2011 ( Annex III - 126 )
Notes in Constitutional Law I (Atty. Berne Guerrero) 3. Two or more States Parties may conclude agreements modifying or suspending the operation of provisions of this Convention, applicable solely to the relations between them, provided that such agreements do not relate to a provision derogation from which is incompatible with the effective execution of the object and purpose of this Convention, and provided further that such agreements shall not affect the application of the basic principles embodied herein, and that the provisions of such agreements do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention. 4. States Parties intending to conclude an agreement referred to in paragraph 3 shall notify the other States Parties through the depositary of this Convention of their intention to conclude the agreement and of the modification or suspension for which it provides. 5. This Article does not affect international agreements expressly permitted or preserved by other Articles of this Convention. 6. States Parties agree that there shall be no amendments to the basic principle relating to the common heritage of mankind set forth in Article 136 and that they shall not be party to any agreement in derogation thereof. Article 312 Amendment 1. After the expiry of a period of 10 years from the date of entry into force of this Convention, a State Party may, by written communication addressed to the Secretary-General of the United Nations, propose specific amendments to this Convention, other than those relating to activities in the Area, and request the convening of a conference to consider such proposed amendments. The Secretary-General shall circulate such communication to all States Parties. If, within 12 months from the date of the circulation of the communication, not less than one half of the States Parties reply favourably to the request, the Secretary-General shall convene the conference. 2. The decision-making procedure applicable at the amendment conference shall be the same as that applicable at the Third United Nations Conference on the Law of the Sea unless otherwise decided by the conference. The conference should make every effort to reach agreement on any amendments by way of consensus and there should be no voting on them until all efforts at consensus have been exhausted. Article 313 Amendment by simplified procedure 1. A State Party may, by written communication addressed to the Secretary-General of the United Nations, propose an amendment to this Convention, other than an amendment relating to activities in the Area, to be adopted by the simplified procedure set forth in this Article without convening a conference. The Secretary-General shall circulate the communication to all States Parties. 2. If, within a period of 12 months from the date of the circulation of the communication, a State Party objects to the proposed amendment or to the proposal for its adoption by the simplified procedure, the amendment shall be considered rejected. The Secretary-General shall immediately notify all States Parties accordingly. 3. If, 12 months from the date of the circulation of the communication, no State Party has objected to the proposed amendment or to the proposal for its adoption by the simplified procedure, the proposed amendment shall be considered adopted. The Secretary-General shall notify all States Parties that the proposed amendment has been adopted. Article 314 Amendments to the provisions of this Convention relating exclusively to activities in the Area 1. A State Party may, by written communication addressed to the Secretary-General of the Authority, propose an amendment to the provisions of this Convention relating exclusively to activities in the Area, including Annex VI, section 4. The Secretary-General shall circulate such communication to all States Parties. The proposed amendment shall be subject to approval by the Assembly following its approval by the Council. Representatives of States Parties in those organs shall have full powers to consider and approve the proposed amendment. The proposed amendment as approved (Draft) First Edition, 2011 ( Annex III - 127 )
Notes in Constitutional Law I (Atty. Berne Guerrero) by the Council and the Assembly shall be considered adopted. 2. Before approving any amendment under paragraph 1, the Council and the Assembly shall ensure that it does not prejudice the system of exploration for and exploitation of the resources of the Area, pending the Review Conference in accordance with Article 155. Article 315 Signature, ratification of, accession to and authentic texts of amendments 1. Once adopted, amendments to this Convention shall be open for signature by States Parties for 12 months from the date of adoption, at United Nations Headquarters in New York, unless otherwise provided in the amendment itself. 2.
Articles 306, 307 and 320 apply to all amendments to this Convention. Article 316 Entry into force of amendments
1. Amendments to this Convention, other than those referred to in paragraph 5, shall enter into force for the States Parties ratifying or acceding to them on the thirtieth day following the deposit of instruments of ratification or accession by two thirds of the States Parties or by 60 States Parties, whichever is greater. Such amendments shall not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention. 2. An amendment may provide that a larger number of ratifications or accessions shall be required for its entry into force than are required by this Article . 3. For each State Party ratifying or acceding to an amendment referred to in paragraph 1 after the deposit of the required number of instruments of ratification or accession, the amendment shall enter into force on the thirtieth day following the deposit of its instrument of ratification or accession. 4. A State which becomes a Party to this Convention after the entry into force of an amendment in accordance with paragraph 1 shall, failing an expression of a different intention by that State: (a)
be considered as a Party to this Convention as so amended; and
(b) be considered as a Party to the unamended Convention in relation to any State Party not bound by the amendment. 5. Any amendment relating exclusively to activities in the Area and any amendment to Annex VI shall enter into force for all States Parties one year following the deposit of instruments of ratification or accession by three fourths of the States Parties. 6. A State which becomes a Party to this Convention after the entry into force of amendments in accordance with paragraph 5 shall be considered as a Party to this Convention as so amended. Article 317 Denunciation 1. A State Party may, by written notification addressed to the Secretary-General of the United Nations, denounce this Convention and may indicate its reasons. Failure to indicate reasons shall not affect the validity of the denunciation. The denunciation shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date. 2. A State shall not be discharged by reason of the denunciation from the financial and contractual obligations which accrued while it was a Party to this Convention, nor shall the denunciation affect any right, obligation or legal situation of that State created through the execution of this Convention prior to its termination for that State.
(Draft) First Edition, 2011 ( Annex III - 128 )
Notes in Constitutional Law I (Atty. Berne Guerrero) 3. The denunciation shall not in any way affect the duty of any State Party to fulfil any obligation embodied in this Convention to which it would be subject under international law independently of this Convention. Article 318 Status of Annexes The Annexes form an integral part of this Convention and, unless expressly provided otherwise, a reference to this Convention or to one of its Parts includes a reference to the Annexes relating thereto. Article 319 Depositary 1. The Secretary-General of the United Nations shall be the depositary of this Convention and amendments thereto. 2.
In addition to his functions as depositary, the Secretary-General shall: (a) report to all States Parties, the Authority and competent international organizations on issues of a general nature that have arisen with respect to this Convention; (b) notify the Authority of ratifications and formal confirmations of and accessions to this Convention and amendments thereto, as well as of denunciations of this Convention; (c)
notify States Parties of agreements in accordance with Article 311, paragraph 4;
(d) circulate amendments adopted in accordance with this Convention to States Parties for ratification or accession;
3.
(e)
convene necessary meetings of States Parties in accordance with this Convention.
(a)
The Secretary-General shall also transmit to the observers referred to in Article 156: (i)
reports referred to in paragraph 2(a);
(ii)
notifications referred to in paragraph 2(b) and (c); and
(iii)
texts of amendments referred to in paragraph 2(d), for their information.
(b) The Secretary-General shall also invite those observers to participate as observers at meetings of States Parties referred to in paragraph 2(e). Article 320 Authentic texts The original of this Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall, subject to Article 305, paragraph 2, be deposited with the Secretary-General of the United Nations. IN WITNESS WHEREOF, the undersigned Plenipotentiaries, being duly authorized thereto, have signed this Convention. DONE AT MONTEGO BAY, this tenth day of December, one thousand nine hundred and eighty-two. Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982
(Draft) First Edition, 2011 ( Annex III - 129 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
The States Parties to this Agreement, Recognizing the important contribution of the United Nations Convention on the Law of the Sea of 10 December 1982 (hereinafter referred to as "the Convention") to the maintenance of peace, justice and progress for all peoples of the world, Reaffirming that the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction (hereinafter referred to as "the Area"), as well as the resources of the Area, are the common heritage of mankind, Mindful of the importance of the Convention for the protection and preservation of the marine environment and of the growing concern for the global environment, Having considered the report of the Secretary-General of the United Nations on the results of the informal consultations among States held from 1990 to 1994 on outstanding issues relating to Part XI and related provisions of the Convention (hereinafter referred to as "Part XI"), Noting the political and economic changes, including market-oriented approaches, affecting the implementation of Part XI, Wishing to facilitate universal participation in the Convention, Considering that an agreement relating to the implementation of Part XI would best meet that objective, Have agreed as follows: Article 1 Implementation of Part XI 1.
The States Parties to this Agreement undertake to implement Part XI in accordance with this Agreement.
2.
The Annex forms an integral part of this Agreement. Article 2 Relationship between this Agreement and Part XI
1. The provisions of this Agreement and Part XI shall be interpreted and applied together as a single instrument. In the event of any inconsistency between this Agreement and Part XI, the provisions of this Agreement shall prevail. 2.
Articles 309 to 319 of the Convention shall apply to this Agreement as they apply to the Convention. Article 3 Signature
This Agreement shall remain open for signature at United Nations Headquarters by the States and entities referred to in Article 305, paragraph 1(a), (c), (d), (e) and (f), of the Convention for 12 months from the date of its adoption. Article 4 Consent to be bound 1. After the adoption of this Agreement, any instrument of ratification or formal confirmation of or accession to the Convention shall also represent consent to be bound by this Agreement. 2. No State or entity may establish its consent to be bound by this Agreement unless it has previously established or establishes at the same time its consent to be bound by the Convention.
(Draft) First Edition, 2011 ( Annex III - 130 )
Notes in Constitutional Law I (Atty. Berne Guerrero) 3.
A State or entity referred to in Article 3 may express its consent to be bound by this Agreement by: (a)
Signature not subject to ratification, formal confirmation or the procedure set out in Article 5;
(b) Signature subject to ratification or formal confirmation, followed by ratification or formal confirmation; (c)
Signature subject to the procedure set out in Article 5; or
(d)
Accession.
4. Formal confirmation by the entities referred to in Article 305, paragraph 1(f), of the Convention shall be in accordance with Annex IX of the Convention. 5. The instruments of ratification, formal confirmation or accession shall be deposited with the Secretary-General of the United Nations. Article 5 Simplified procedure 1. A State or entity which has deposited before the date of the adoption of this Agreement an instrument of ratification or formal confirmation of or accession to the Convention and which has signed this Agreement in accordance with Article 4, paragraph 3(c), shall be considered to have established its consent to be bound by this Agreement 12 months after the date of its adoption, unless that State or entity notifies the depositary in writing before that date that it is not availing itself of the simplified procedure set out in this Article . 2. In the event of such notification, consent to be bound by this Agreement shall be established in accordance with Article 4, paragraph 3(b). Article 6 Entry into force 1. This Agreement shall enter into force 30 days after the date on which 40 States have established their consent to be bound in accordance with Articles 4 and 5, provided that such States include at least seven of the States referred to in paragraph l(a) of resolution II of the Third United Nations Conference on the Law of the Sea (hereinafter referred to as "resolution II") and that at least five of those States are developed States. If these conditions for entry into force are fulfilled before 16 November 1994, this Agreement shall enter into force on 16 November 1994. 2. For each State or entity establishing its consent to be bound by this Agreement after the requirements set out in paragraph 1 have been fulfilled, this Agreement shall enter into force on the thirtieth day following the date of establishment of its consent to be bound. Article 7 Provisional application 1. If on 16 November 1994 this Agreement has not entered into force, it shall be applied provisionally pending its entry into force by: (a) States which have consented to its adoption in the General Assembly of the United Nations, except any such State which before 16 November 1994 notifies the depositary in writing either that it will not so apply this Agreement or that it will consent to such application only upon subsequent signature or notification in writing; (b) States and entities which sign this Agreement, except any such State or entity which notifies the depositary in writing at the time of signature that it will not so apply this Agreement; (c)
States and entities which consent to its provisional application by so notifying the depositary in (Draft) First Edition, 2011 ( Annex III - 131 )
Notes in Constitutional Law I (Atty. Berne Guerrero) writing; (d)
States which accede to this Agreement.
2. All such States and entities shall apply this Agreement provisionally in accordance with their national or internal laws and regulations, with effect from 16 November 1994 or the date of signature, notification of consent or accession, if later. 3. Provisional application shall terminate upon the date of entry into force of this Agreement. In any event, provisional application shall terminate on 16 November 1998 if at that date the requirement in Article 6, paragraph 1, of consent to be bound by this Agreement by at least seven of the States (of which at least five must be developed States) referred to in paragraph 1(a) of resolution II has not been fulfilled. Article 8 States Parties 1. For the purposes of this Agreement, "States Parties" means States which have consented to be bound by this Agreement and for which this Agreement is in force. 2. This Agreement applies mutatis mutandis to the entities referred to in Article 305, paragraph 1(c), (d), (e) and (f), of the Convention which become Parties to this Agreement in accordance with the conditions relevant to each, and to that extent "States Parties" refers to those entities. Article 9 Depositary The Secretary-General of the United Nations shall be the depositary of this Agreement. Article 10 Authentic texts The original of this Agreement, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations. IN WITNESS WHEREOF, the undersigned Plenipotentiaries, being duly authorized thereto, have signed this Agreement. DONE AT NEW YORK, this twenty-eighth day of July, one thousand nine hundred and ninety-four. SECTION 1. COSTS TO STATES PARTIES AND INSTITUTIONAL ARRANGEMENTS 1. The International Seabed Authority (hereinafter referred to as "the Authority") is the organization through which States Parties to the Convention shall, in accordance with the regime for the Area established in Part XI and this Agreement, organize and control activities in the Area, particularly with a view to administering the resources of the Area. The powers and functions of the Authority shall be those expressly conferred upon it by the Convention. The Authority shall have such incidental powers, consistent with the Convention, as are implicit in, and necessary for, the exercise of those powers and functions with respect to activities in the Area. 2. In order to minimize costs to States Parties, all organs and subsidiary bodies to be established under the Convention and this Agreement shall be cost-effective. This principle shall also apply to the frequency, duration and scheduling of meetings. 3. The setting up and the functioning of the organs and subsidiary bodies of the Authority shall be based on an evolutionary approach, taking into account the functional needs of the organs and subsidiary bodies concerned in order that they may discharge effectively their respective responsibilities at various stages of the development of activities in the Area. (Draft) First Edition, 2011 ( Annex III - 132 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
4. The early functions of the Authority upon entry into force of the Convention shall be carried out by the Assembly, the Council, the Secretariat, the Legal and Technical Commission and the Finance Committee. The functions of the Economic Planning Commission shall be performed by the Legal and Technical Commission until such time as the Council decides otherwise or until the approval of the first plan of work for exploitation. 5. Between the entry into force of the Convention and the approval of the first plan of work for exploitation, the Authority shall concentrate on: (a) Processing of applications for approval of plans of work for exploration in accordance with Part XI and this Agreement; (b) Implementation of decisions of the Preparatory Commission for the International Seabed Authority and for the International Tribunal for the Law of the Sea (hereinafter referred to as "the Preparatory Commission") relating to the registered pioneer investors and their certifying States, including their rights and obligations, in accordance with article 308, paragraph 5, of the Convention and resolution II, paragraph 13; (c)
Monitoring of compliance with plans of work for exploration approved in the form of contracts;
(d) Monitoring and review of trends and developments relating to deep seabed mining activities, including regular analysis of world metal market conditions and metal prices, trends and prospects; (e) Study of the potential impact of mineral production from the Area on the economies of developing land-based producers of those minerals which are likely to be most seriously affected, with a view to minimizing their difficulties and assisting them in their economic adjustment, taking into account the work done in this regard by the Preparatory Commission; (f) Adoption of rules, regulations and procedures necessary for the conduct of activities in the Area as they progress. Notwithstanding the provisions of Annex III, article 17, paragraph 2(b) and (c), of the Convention, such rules, regulations and procedures shall take into account the terms of this Agreement, the prolonged delay in commercial deep seabed mining and the likely pace of activities in the Area; (g) Adoption of rules, regulations and procedures incorporating applicable standards for the protection and preservation of the marine environment; (h) Promotion and encouragement of the conduct of marine scientific research with respect to activities in the Area and the collection and dissemination of the results of such research and analysis, when available, with particular emphasis on research related to the environmental impact of activities in the Area; (i) Acquisition of scientific knowledge and monitoring of the development of marine technology relevant to activities in the Area, in particular technology relating to the protection and preservation of the marine environment; (j)
Assessment of available data relating to prospecting and exploration;
(k) Timely elaboration of rules, regulations and procedures for exploitation, including those relating to the protection and preservation of the marine environment. 6.
(a) An application for approval of a plan of work for exploration shall be considered by the Council following the receipt of a recommendation on the application from the Legal and Technical Commission. The processing of an application for approval of a plan of work for exploration shall be in accordance with the provisions of the Convention, including Annex III thereof, and this Agreement, and subject to the following: (i) A plan of work for exploration submitted on behalf of a State or entity, or any component of such entity, referred to in resolution II, paragraph 1(a)(ii) or (iii), other than a registered pioneer investor, which had already undertaken substantial activities in the Area prior to the entry into force of (Draft) First Edition, 2011 ( Annex III - 133 )
Notes in Constitutional Law I (Atty. Berne Guerrero) the Convention, or its successor in interest, shall be considered to have met the financial and technical qualifications necessary for approval of a plan of work if the sponsoring State or States certify that the applicant has expended an amount equivalent to at least US$ 30 million in research and exploration activities and has expended no less than 10 per cent of that amount in the location, survey and evaluation of the area referred to in the plan of work. If the plan of work otherwise satisfies the requirements of the Convention and any rules, regulations and procedures adopted pursuant thereto, it shall be approved by the Council in the form of a contract. The provisions of section 3, paragraph 11, of this Annex shall be interpreted and applied accordingly; (ii) Notwithstanding the provisions of resolution II, paragraph 8(a), a registered pioneer investor may request approval of a plan of work for exploration within 36 months of the entry into force of the Convention. The plan of work for exploration shall consist of documents, reports and other data submitted to the Preparatory Commission both before and after registration and shall be accompanied by a certificate of compliance, consisting of a factual report describing the status of fulfilment of obligations under the pioneer investor regime, issued by the Preparatory Commission in accordance with resolution II, paragraph 11(a). Such a plan of work shall be considered to be approved. Such an approved plan of work shall be in the form of a contract concluded between the Authority and the registered pioneer investor in accordance with Part XI and this Agreement. The fee of US$ 250,000 paid pursuant to resolution II, paragraph 7(a), shall be deemed to be the fee relating to the exploration phase pursuant to section 8, paragraph 3, of this Annex. Section 3, paragraph 11, of this Annex shall be interpreted and applied accordingly; (iii) In accordance with the principle of non-discrimination, a contract with a State or entity or any component of such entity referred to in subparagraph (a)(i) shall include arrangements which shall be similar to and no less favourable than those agreed with any registered pioneer investor referred to in subparagraph (a)(ii). If any of the States or entities or any components of such entities referred to in subparagraph (a)(i) are granted more favourable arrangements, the Council shall make similar and no less favourable arrangements with regard to the rights and obligations assumed by the registered pioneer investors referred to in subparagraph (a)(ii), provided that such arrangements do not affect or prejudice the interests of the Authority; (iv) A State sponsoring an application for a plan of work pursuant to the provisions of subparagraph (a)(i) or (ii) may be a State Party or a State which is applying this Agreement provisionally in accordance with article 7, or a State which is a member of the Authority on a provisional basis in accordance with paragraph 12; (v) Resolution II, paragraph 8(c), shall be interpreted and applied in accordance with subparagraph (a)(iv). (b) The approval of a plan of work for exploration shall be in accordance with article 153, paragraph 3, of the Convention. 7. An application for approval of a plan of work shall be accompanied by an assessment of the potential environmental impacts of the proposed activities and by a description of a programme for oceanographic and baseline environmental studies in accordance with the rules, regulations and procedures adopted by the Authority. 8. An application for approval of a plan of work for exploration, subject to paragraph 6(a)(i) or (ii), shall be processed in accordance with the procedures set out in section 3, paragraph 11, of this Annex. 9. A plan of work for exploration shall be approved for a period of 15 years. Upon the expiration of a plan of work for exploration, the contractor shall apply for a plan of work for exploitation unless the contractor has already done so or has obtained an extension for the plan of work for exploration. Contractors may apply for such extensions for periods of not more than five years each. Such extensions shall be approved if the contractor has made efforts in good faith to comply with the requirements of the plan of work but for reasons beyond the contractor's control has been unable to complete the necessary preparatory work for proceeding to the exploitation stage or if the prevailing economic circumstances do not justify proceeding to the exploitation stage. (Draft) First Edition, 2011 ( Annex III - 134 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
10. Designation of a reserved area for the Authority in accordance with Annex III, article 8, of the Convention shall take place in connection with approval of an application for a plan of work for exploration or approval of an application for a plan of work for exploration and exploitation. 11. Notwithstanding the provisions of paragraph 9, an approved plan of work for exploration which is sponsored by at least one State provisionally applying this Agreement shall terminate if such a State ceases to apply this Agreement provisionally and has not become a member on a provisional basis in accordance with paragraph 12 or has not become a State Party. 12. Upon the entry into force of this Agreement, States and entities referred to in article 3 of this Agreement which have been applying it provisionally in accordance with article 7 and for which it is not in force may continue to be members of the Authority on a provisional basis pending its entry into force for such States and entities, in accordance with the following subparagraphs: (a) If this Agreement enters into force before 16 November 1996, such States and entities shall be entitled to continue to participate as members of the Authority on a provisional basis upon notification to the depositary of the Agreement by such a State or entity of its intention to participate as a member on a provisional basis. Such membership shall terminate either on 16 November 1996 or upon the entry into force of this Agreement and the Convention for such member, whichever is earlier. The Council may, upon the request of the State or entity concerned, extend such membership beyond 16 November 1996 for a further period or periods not exceeding a total of two years provided that the Council is satisfied that the State or entity concerned has been making efforts in good faith to become a party to the Agreement and the Convention; (b) If this Agreement enters into force after 15 November 1996, such States and entities may request the Council to grant continued membership in the Authority on a provisional basis for a period or periods not extending beyond 16 November 1998. The Council shall grant such membership with effect from the date of the request if it is satisfied that the State or entity has been making efforts in good faith to become a party to the Agreement and the Convention; (c) States and entities which are members of the Authority on a provisional basis in accordance with subparagraph (a) or (b) shall apply the terms of Part XI and this Agreement in accordance with their national or internal laws, regulations and annual budgetary appropriations and shall have the same rights and obligations as other members, including: (i) The obligation to contribute to the administrative budget of the Authority in accordance with the scale of assessed contributions; (ii) The right to sponsor an application for approval of a plan of work for exploration. In the case of entities whose components are natural or juridical persons possessing the nationality of more than one State, a plan of work for exploration shall not be approved unless all the States whose natural or juridical persons comprise those entities are States Parties or members on a provisional basis; (d) Notwithstanding the provisions of paragraph 9, an approved plan of work in the form of a contract for exploration which was sponsored pursuant to subparagraph (c)(ii) by a State which was a member on a provisional basis shall terminate if such membership ceases and the State or entity has not become a State Party; (e) If such a member has failed to make its assessed contributions or otherwise failed to comply with its obligations in accordance with this paragraph, its membership on a provisional basis shall be terminated. 13. The reference in Annex III, article 10, of the Convention to performance which has not been satisfactory shall be interpreted to mean that the contractor has failed to comply with the requirements of an approved plan of work in spite of a written warning or warnings from the Authority to the contractor to comply therewith. 14. The Authority shall have its own budget. Until the end of the year following the year during which this Agreement enters into force, the administrative expenses of the Authority shall be met through the budget of the United (Draft) First Edition, 2011 ( Annex III - 135 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Nations. Thereafter, the administrative expenses of the Authority shall be met by assessed contributions of its members, including any members on a provisional basis, in accordance with articles 171, subparagraph (a), and 173 of the Convention and this Agreement, until the Authority has sufficient funds from other sources to meet those expenses. The Authority shall not exercise the power referred to in article 174, paragraph 1, of the Convention to borrow funds to finance its administrative budget. 15. The Authority shall elaborate and adopt, in accordance with article 162, paragraph 2(o)(ii), of the Convention, rules, regulations and procedures based on the principles contained in sections 2, 5, 6, 7 and 8 of this Annex, as well as any additional rules, regulations and procedures necessary to facilitate the approval of plans of work for exploration or exploitation, in accordance with the following subparagraphs: (a) The Council may undertake such elaboration any time it deems that all or any of such rules, regulations or procedures are required for the conduct of activities in the Area, or when it determines that commercial exploitation is imminent, or at the request of a State whose national intends to apply for approval of a plan of work for exploitation; (b) If a request is made by a State referred to in subparagraph (a) the Council shall, in accordance with article 162, paragraph 2(o), of the Convention, complete the adoption of such rules, regulations and procedures within two years of the request; (c) If the Council has not completed the elaboration of the rules, regulations and procedures relating to exploitation within the prescribed time and an application for approval of a plan of work for exploitation is pending, it shall none the less consider and provisionally approve such plan of work based on the provisions of the Convention and any rules, regulations and procedures that the Council may have adopted provisionally, or on the basis of the norms contained in the Convention and the terms and principles contained in this Annex as well as the principle of non-discrimination among contractors. 16. The draft rules, regulations and procedures and any recommendations relating to the provisions of Part XI, as contained in the reports and recommendations of the Preparatory Commission, shall be taken into account by the Authority in the adoption of rules, regulations and procedures in accordance with Part XI and this Agreement. 17. The relevant provisions of Part XI, section 4, of the Convention shall be interpreted and applied in accordance with this Agreement. SECTION 2. THE ENTERPRISE 1. The Secretariat of the Authority shall perform the functions of the Enterprise until it begins to operate independently of the Secretariat. The Secretary-General of the Authority shall appoint from within the staff of the Authority an interim Director-General to oversee the performance of these functions by the Secretariat. These functions shall be: (a) Monitoring and review of trends and developments relating to deep seabed mining activities, including regular analysis of world metal market conditions and metal prices, trends and prospects; (b) Assessment of the results of the conduct of marine scientific research with respect to activities in the Area, with particular emphasis on research related to the environmental impact of activities in the Area; (c) Assessment of available data relating to prospecting and exploration, including the criteria for such activities; (d) Assessment of technological developments relevant to activities in the Area, in particular technology relating to the protection and preservation of the marine environment; (e)
Evaluation of information and data relating to areas reserved for the Authority; (Draft) First Edition, 2011 ( Annex III - 136 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
(f)
Assessment of approaches to joint-venture operations;
(g)
Collection of information on the availability of trained manpower;
(h) Study of managerial policy options for the administration of the Enterprise at different stages of its operations. 2. The Enterprise shall conduct its initial deep seabed mining operations through joint ventures. Upon the approval of a plan of work for exploitation for an entity other than the Enterprise, or upon receipt by the Council of an application for a joint-venture operation with the Enterprise, the Council shall take up the issue of the functioning of the Enterprise independently of the Secretariat of the Authority. If joint-venture operations with the Enterprise accord with sound commercial principles, the Council shall issue a directive pursuant to article 170, paragraph 2, of the Convention providing for such independent functioning. 3. The obligation of States Parties to fund one mine site of the Enterprise as provided for in Annex IV, article 11, paragraph 3, of the Convention shall not apply and States Parties shall be under no obligation to finance any of the operations in any mine site of the Enterprise or under its joint-venture arrangements. 4. The obligations applicable to contractors shall apply to the Enterprise. Notwithstanding the provisions of article 153, paragraph 3, and Annex III, article 3, paragraph 5, of the Convention, a plan of work for the Enterprise upon its approval shall be in the form of a contract concluded between the Authority and the Enterprise. 5. A contractor which has contributed a particular area to the Authority as a reserved area has the right of first refusal to enter into a joint-venture arrangement with the Enterprise for exploration and exploitation of that area. If the Enterprise does not submit an application for a plan of work for activities in respect of such a reserved area within 15 years of the commencement of its functions independent of the Secretariat of the Authority or within 15 years of the date on which that area is reserved for the Authority, whichever is the later, the contractor which contributed the area shall be entitled to apply for a plan of work for that area provided it offers in good faith to include the Enterprise as a jointventure partner. 6. Article 170, paragraph 4, Annex IV and other provisions of the Convention relating to the Enterprise shall be interpreted and applied in accordance with this section. SECTION 3. DECISION-MAKING 1.
The general policies of the Authority shall be established by the Assembly in collaboration with the Council.
2.
As a general rule, decision-making in the organs of the Authority should be by consensus.
3. If all efforts to reach a decision by consensus have been exhausted, decisions by voting in the Assembly on questions of procedure shall be taken by a majority of members present and voting, and decisions on questions of substance shall be taken by a two-thirds majority of members present and voting, as provided for in article 159, paragraph 8, of the Convention. 4. Decisions of the Assembly on any matter for which the Council also has competence or on any administrative, budgetary or financial matter shall be based on the recommendations of the Council. If the Assembly does not accept the recommendation of the Council on any matter, it shall return the matter to the Council for further consideration. The Council shall reconsider the matter in the light of the views expressed by the Assembly. 5. If all efforts to reach a decision by consensus have been exhausted, decisions by voting in the Council on questions of procedure shall be taken by a majority of members present and voting, and decisions on questions of substance, except where the Convention provides for decisions by consensus in the Council, shall be taken by a twothirds majority of members present and voting, provided that such decisions are not opposed by a majority in any one of the chambers referred to in paragraph 9. In taking decisions the Council shall seek to promote the interests of all the (Draft) First Edition, 2011 ( Annex III - 137 )
Notes in Constitutional Law I (Atty. Berne Guerrero) members of the Authority. 6. The Council may defer the taking of a decision in order to facilitate further negotiation whenever it appears that all efforts at achieving consensus on a question have not been exhausted. 7. Decisions by the Assembly or the Council having financial or budgetary implications shall be based on the recommendations of the Finance Committee. 8.
The provisions of article 161, paragraph 8(b) and (c), of the Convention shall not apply.
9.
(a) Each group of States elected under paragraph 15(a) to (c) shall be treated as a chamber for the purposes of voting in the Council. The developing States elected under paragraph 15(d) and (e) shall be treated as a single chamber for the purposes of voting in the Council. (b) Before electing the members of the Council, the Assembly shall establish lists of countries fulfilling the criteria for membership in the groups of States in paragraph 15(a) to (d). If a State fulfils the criteria for membership in more than one group, it may only be proposed by one group for election to the Council and it shall represent only that group in voting in the Council.
10. Each group of States in paragraph 15(a) to (d) shall be represented in the Council by those members nominated by that group. Each group shall nominate only as many candidates as the number of seats required to be filled by that group. When the number of potential candidates in each of the groups referred to in paragraph 15(a) to (e) exceeds the number of seats available in each of those respective groups, as a general rule, the principle of rotation shall apply. States members of each of those groups shall determine how this principle shall apply in those groups. 11.
(a) The Council shall approve a recommendation by the Legal and Technical Commission for approval of a plan of work unless by a two-thirds majority of its members present and voting, including a majority of members present and voting in each of the chambers of the Council, the Council decides to disapprove a plan of work. If the Council does not take a decision on a recommendation for approval of a plan of work within a prescribed period, the recommendation shall be deemed to have been approved by the Council at the end of that period. The prescribed period shall normally be 60 days unless the Council decides to provide for a longer period. If the Commission recommends the disapproval of a plan of work or does not make a recommendation, the Council may nevertheless approve the plan of work in accordance with its rules of procedure for decisionmaking on questions of substance. (b)
The provisions of article 162, paragraph 2(j), of the Convention shall not apply.
12. Where a dispute arises relating to the disapproval of a plan of work, such dispute shall be submitted to the dispute settlement procedures set out in the Convention. 13. Decisions by voting in the Legal and Technical Commission shall be by a majority of members present and voting. 14. Part XI, section 4, subsections B and C, of the Convention shall be interpreted and applied in accordance with this section. 15.
The Council shall consist of 36 members of the Authority elected by the Assembly in the following order: (a) Four members from among those States Parties which, during the last five years for which statistics are available, have either consumed more than 2 per cent in value terms of total world consumption or have had net imports of more than 2 per cent in value terms of total world imports of the commodities produced from the categories of minerals to be derived from the Area, provided that the four members shall include one State from the Eastern European region having the largest economy in that region in terms of gross domestic product and the State, on the date of entry into force of the Convention, having the largest economy in terms of gross domestic product, if such States wish to be represented in this group;
(Draft) First Edition, 2011 ( Annex III - 138 )
Notes in Constitutional Law I (Atty. Berne Guerrero) (b) Four members from among the eight States Parties which have made the largest investments in preparation for and in the conduct of activities in the Area, either directly or through their nationals; (c) Four members from among States Parties which, on the basis of production in areas under their jurisdiction, are major net exporters of the categories of minerals to be derived from the Area, including at least two developing States whose exports of such minerals have a substantial bearing upon their economies; (d) Six members from among developing States Parties, representing special interests. The special interests to be represented shall include those of States with large populations, States which are land-locked or geographically disadvantaged, island States, States which are major importers of the categories of minerals to be derived from the Area, States which are potential producers of such minerals and least developed States; (e) Eighteen members elected according to the principle of ensuring an equitable geographical distribution of seats in the Council as a whole, provided that each geographical region shall have at least one member elected under this subparagraph. For this purpose, the geographical regions shall be Africa, Asia, Eastern Europe, Latin America and the Caribbean and Western Europe and Others. 16.
The provisions of article 161, paragraph 1, of the Convention shall not apply. SECTION 4. REVIEW CONFERENCE
The provisions relating to the Review Conference in article 155, paragraphs 1, 3 and 4, of the Convention shall not apply. Notwithstanding the provisions of article 314, paragraph 2, of the Convention, the Assembly, on the recommendation of the Council, may undertake at any time a review of the matters referred to in article 155, paragraph 1, of the Convention. Amendments relating to this Agreement and Part XI shall be subject to the procedures contained in articles 314, 315 and 316 of the Convention, provided that the principles, regime and other terms referred to in article 155, paragraph 2, of the Convention shall be maintained and the rights referred to in paragraph 5 of that article shall not be affected. SECTION 5. TRANSFER OF TECHNOLOGY 1. In addition to the provisions of article 144 of the Convention, transfer of technology for the purposes of Part XI shall be governed by the following principles: (a) The Enterprise, and developing States wishing to obtain deep seabed mining technology, shall seek to obtain such technology on fair and reasonable commercial terms and conditions on the open market, or through joint-venture arrangements; (b) If the Enterprise or developing States are unable to obtain deep seabed mining technology, the Authority may request all or any of the contractors and their respective sponsoring State or States to cooperate with it in facilitating the acquisition of deep seabed mining technology by the Enterprise or its joint venture, or by a developing State or States seeking to acquire such technology on fair and reasonable commercial terms and conditions, consistent with the effective protection of intellectual property rights. States Parties undertake to cooperate fully and effectively with the Authority for this purpose and to ensure that contractors sponsored by them also cooperate fully with the Authority; (c) As a general rule, States Parties shall promote international technical and scientific cooperation with regard to activities in the Area either between the parties concerned or by developing training, technical assistance and scientific cooperation programmes in marine science and technology and the protection and preservation of the marine environment. 2.
The provisions of Annex III, article 5, of the Convention shall not apply. SECTION 6. PRODUCTION POLICY (Draft) First Edition, 2011 ( Annex III - 139 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
1.
The production policy of the Authority shall be based on the following principles: (a) Development of the resources of the Area shall take place in accordance with sound commercial principles; (b) The provisions of the General Agreement on Tariffs and Trade, its relevant codes and successor or superseding agreements shall apply with respect to activities in the Area; (c) In particular, there shall be no subsidization of activities in the Area except as may be permitted under the agreements referred to in subparagraph (b). Subsidization for the purpose of these principles shall be defined in terms of the agreements referred to in subparagraph (b); (d) There shall be no discrimination between minerals derived from the Area and from other sources. There shall be no preferential access to markets for such minerals or for imports of commodities produced from such minerals, in particular: (i)
By the use of tariff or non-tariff barriers; and
(ii) Given by States Parties to such minerals or commodities produced by their state enterprises or by natural or juridical persons which possess their nationality or are controlled by them or their nationals; (e) The plan of work for exploitation approved by the Authority in respect of each mining area shall indicate an anticipated production schedule which shall include the estimated maximum amounts of minerals that would be produced per year under the plan of work; (f) The following shall apply to the settlement of disputes concerning the provisions of the agreements referred to in subparagraph (b): (i) Where the States Parties concerned are parties to such agreements, they shall have recourse to the dispute settlement procedures of those agreements; (ii) Where one or more of the States Parties concerned are not parties to such agreements, they shall have recourse to the dispute settlement procedures set out in the Convention; (g) In circumstances where a determination is made under the agreements referred to in subparagraph (b) that a State Party has engaged in subsidization which is prohibited or has resulted in adverse effects on the interests of another State Party and appropriate steps have not been taken by the relevant State Party or States Parties, a State Party may request the Council to take appropriate measures. 2. The principles contained in paragraph 1 shall not affect the rights and obligations under any provision of the agreements referred to in paragraph 1(b), as well as the relevant free trade and customs union agreements, in relations between States Parties which are parties to such agreements. 3. The acceptance by a contractor of subsidies other than those which may be permitted under the agreements referred to in paragraph 1(b) shall constitute a violation of the fundamental terms of the contract forming a plan of work for the carrying out of activities in the Area. 4. Any State Party which has reason to believe that there has been a breach of the requirements of paragraphs 1(b) to (d) or 3 may initiate dispute settlement procedures in conformity with paragraph 1(f) or (g). 5. A State Party may at any time bring to the attention of the Council activities which in its view are inconsistent with the requirements of paragraph 1(b) to (d). 6.
The Authority shall develop rules, regulations and procedures which ensure the implementation of the (Draft) First Edition, 2011 ( Annex III - 140 )
Notes in Constitutional Law I (Atty. Berne Guerrero) provisions of this section, including relevant rules, regulations and procedures governing the approval of plans of work. 7. The provisions of article 151, paragraphs 1 to 7 and 9, article 162, paragraph 2(q), article 165, paragraph 2(n), and Annex III, article 6, paragraph 5, and article 7, of the Convention shall not apply. SECTION 7. ECONOMIC ASSISTANCE 1. The policy of the Authority of assisting developing countries which suffer serious adverse effects on their export earnings or economies resulting from a reduction in the price of an affected mineral or in the volume of exports of that mineral, to the extent that such reduction is caused by activities in the Area, shall be based on the following principles: (a) The Authority shall establish an economic assistance fund from a portion of the funds of the Authority which exceeds those necessary to cover the administrative expenses of the Authority. The amount set aside for this purpose shall be determined by the Council from time to time, upon the recommendation of the Finance Committee. Only funds from payments received from contractors, including the Enterprise, and voluntary contributions shall be used for the establishment of the economic assistance fund; (b) Developing land-based producer States whose economies have been determined to be seriously affected by the production of minerals from the deep seabed shall be assisted from the economic assistance fund of the Authority; (c) The Authority shall provide assistance from the fund to affected developing land-based producer States, where appropriate, in cooperation with existing global or regional development institutions which have the infrastructure and expertise to carry out such assistance programmes; (d) The extent and period of such assistance shall be determined on a case-by-case basis. In doing so, due consideration shall be given to the nature and magnitude of the problems encountered by affected developing land-based producer States. 2. Article 151, paragraph 10, of the Convention shall be implemented by means of measures of economic assistance referred to in paragraph 1. Article 160, paragraph 2(l), article 162, paragraph 2(n), article 164, paragraph 2(d), article 171, subparagraph (f), and article 173, paragraph 2(c), of the Convention shall be interpreted accordingly. SECTION 8. FINANCIAL TERMS OF CONTRACTS 1. The following principles shall provide the basis for establishing rules, regulations and procedures for financial terms of contracts: (a) The system of payments to the Authority shall be fair both to the contractor and to the Authority and shall provide adequate means of determining compliance by the contractor with such system; (b) The rates of payments under the system shall be within the range of those prevailing in respect of landbased mining of the same or similar minerals in order to avoid giving deep seabed miners an artificial competitive advantage or imposing on them a competitive disadvantage; (c) The system should not be complicated and should not impose major administrative costs on the Authority or on a contractor. Consideration should be given to the adoption of a royalty system or a combination of a royalty and profit-sharing system. If alternative systems are decided upon, the contractor has the right to choose the system applicable to its contract. Any subsequent change in choice between alternative systems, however, shall be made by agreement between the Authority and the contractor; (d) An annual fixed fee shall be payable from the date of commencement of commercial production. This fee may be credited against other payments due under the system adopted in accordance with subparagraph (c). (Draft) First Edition, 2011 ( Annex III - 141 )
Notes in Constitutional Law I (Atty. Berne Guerrero) The amount of the fee shall be established by the Council; (e) The system of payments may be revised periodically in the light of changing circumstances. Any changes shall be applied in a non-discriminatory manner. Such changes may apply to existing contracts only at the election of the contractor. Any subsequent change in choice between alternative systems shall be made by agreement between the Authority and the contractor; (f) Disputes concerning the interpretation or application of the rules and regulations based on these principles shall be subject to the dispute settlement procedures set out in the Convention. 2.
The provisions of Annex III, article 13, paragraphs 3 to 10, of the Convention shall not apply.
3. With regard to the implementation of Annex III, article 13, paragraph 2, of the Convention, the fee for processing applications for approval of a plan of work limited to one phase, either the exploration phase or the exploitation phase, shall be US$ 250,000. SECTION 9. THE FINANCE COMMITTEE 1. There is hereby established a Finance Committee. The Committee shall be composed of 15 members with appropriate qualifications relevant to financial matters. States Parties shall nominate candidates of the highest standards of competence and integrity. 2.
No two members of the Finance Committee shall be nationals of the same State Party.
3. Members of the Finance Committee shall be elected by the Assembly and due account shall be taken of the need for equitable geographical distribution and the representation of special interests. Each group of States referred to in section 3, paragraph 15(a), (b), (c) and (d), of this Annex shall be represented on the Committee by at least one member. Until the Authority has sufficient funds other than assessed contributions to meet its administrative expenses, the membership of the Committee shall include representatives of the five largest financial contributors to the administrative budget of the Authority. Thereafter, the election of one member from each group shall be on the basis of nomination by the members of the respective group, without prejudice to the possibility of further members being elected from each group. 4. Members of the Finance Committee shall hold office for a term of five years. They shall be eligible for reelection for a further term. 5. In the event of the death, incapacity or resignation of a member of the Finance Committee prior to the expiration of the term of office, the Assembly shall elect for the remainder of the term a member from the same geographical region or group of States. 6. Members of the Finance Committee shall have no financial interest in any activity relating to matters upon which the Committee has the responsibility to make recommendations. They shall not disclose, even after the termination of their functions, any confidential information coming to their knowledge by reason of their duties for the Authority. 7. Decisions by the Assembly and the Council on the following issues shall take into account recommendations of the Finance Committee: (a) Draft financial rules, regulations and procedures of the organs of the Authority and the financial management and internal financial administration of the Authority; (b) Assessment of contributions of members to the administrative budget of the Authority in accordance with article 160, paragraph 2(e), of the Convention; (c)
All relevant financial matters, including the proposed annual budget prepared by the Secretary-General (Draft) First Edition, 2011 ( Annex III - 142 )
Notes in Constitutional Law I (Atty. Berne Guerrero) of the Authority in accordance with article 172 of the Convention and the financial aspects of the implementation of the programmes of work of the Secretariat; (d)
The administrative budget;
(e) Financial obligations of States Parties arising from the implementation of this Agreement and Part XI as well as the administrative and budgetary implications of proposals and recommendations involving expenditure from the funds of the Authority; (f) Rules, regulations and procedures on the equitable sharing of financial and other economic benefits derived from activities in the Area and the decisions to be made thereon. 8. Decisions in the Finance Committee on questions of procedure shall be taken by a majority of members present and voting. Decisions on questions of substance shall be taken by consensus. 9. The requirement of article 162, paragraph 2(y), of the Convention to establish a subsidiary organ to deal with financial matters shall be deemed to have been fulfilled by the establishment of the Finance Committee in accordance with this section. Annexes to the Convention ANNEX I. HIGHLY MIGRATORY SPECIES 1.
Albacore tuna: Thunnus alalunga.
2.
Bluefin tuna: Thunnus thynnus.
3.
Bigeye tuna: Thunnus obesus.
4.
Skipjack tuna: Katsuwonus pelamis.
5.
Yellowfin tuna: Thunnus albacares.
6.
Blackfin tuna: Thunnus atlanticus.
7.
Little tuna: Euthynnus alletteratus; Euthynnus affinis.
8.
Southern bluefin tuna: Thunnus maccoyii.
9.
Frigate mackerel: Auxis thazard; Auxis rochei.
10.
Pomfrets: Family Bramidae.
11. Marlins: Tetrapturus angustirostris; Tetrapturus belone; Tetrapturus pfluegeri; Tetrapturus albidus; Tetrapturus audax; Tetrapturus georgei; Makaira mazara; Makaira indica; Makaira nigricans. 12.
Sail-fishes: Istiophorus platypterus; Istiophorus albicans.
13.
Swordfish: Xiphias gladius.
14.
Sauries: Scomberesox saurus; Cololabis saira; Cololabis adocetus; Scomberesox saurus scombroides.
15.
Dolphin: Coryphaena hippurus; Coryphaena equiselis.
(Draft) First Edition, 2011 ( Annex III - 143 )
Notes in Constitutional Law I (Atty. Berne Guerrero) 16. Oceanic sharks: Hexanchus griseus; Cetorhinus maximus; Family Alopiidae; Rhincodon typus; Family Carcharhinidae; Family Sphyrnidae; Family Isurida. 17. Cetaceans: Family Physeteridae; Family Balaenopteridae; Family Balaenidae; Family Eschrichtiidae; Family Monodontidae; Family Ziphiidae; Family Delphinidae.
ANNEX II. COMMISSION ON THE LIMITS OF THE CONTINENTAL SHELF Article 1 In accordance with the provisions of article 76, a Commission on the Limits of the Continental Shelf beyond 200 nautical miles shall be established in conformity with the following articles. Article 2 1. The Commission shall consist of 21 members who shall be experts in the field of geology, geophysics or hydrography, elected by States Parties to this Convention from among their nationals, having due regard to the need to ensure equitable geographical representation, who shall serve in their personal capacities. 2. The initial election shall be held as soon as possible but in any case within 18 months after the date of entry into force of this Convention. At least three months before the date of each election, the Secretary-General of the United Nations shall address a letter to the States Parties, inviting the submission of nominations, after appropriate regional consultations, within three months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated and shall submit it to all the States Parties. 3. Elections of the members of the Commission shall be held at a meeting of States Parties convened by the Secretary-General at United Nations Headquarters. At that meeting, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Commission shall be those nominees who obtain a two-thirds majority of the votes of the representatives of States Parties present and voting. Not less than three members shall be elected from each geographical region. 4.
The members of the Commission shall be elected for a term of five years. They shall be eligible for re-election.
5. The State Party which submitted the nomination of a member of the Commission shall defray the expenses of that member while in performance of Commission duties. The coastal State concerned shall defray the expenses incurred in respect of the advice referred to in article 3, paragraph 1(b), of this Annex. The secretariat of the Commission shall be provided by the Secretary-General of the United Nations. Article 3 1.
The functions of the Commission shall be: (a) to consider the data and other material submitted by coastal States concerning the outer limits of the continental shelf in areas where those limits extend beyond 200 nautical miles, and to make recommendations in accordance with article 76 and the Statement of Understanding adopted on 29 August 1980 by the Third United Nations Conference on the Law of the Sea; (b) to provide scientific and technical advice, if requested by the coastal State concerned during the preparation of the data referred to in subparagraph (a).
2. The Commission may cooperate, to the extent considered necessary and useful, with the Intergovernmental Oceanographic Commission of UNESCO, the International Hydrographic Organization and other competent international organizations with a view to exchanging scientific and technical information which might be of assistance in discharging the Commission's responsibilities. (Draft) First Edition, 2011 ( Annex III - 144 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
Article 4 Where a coastal State intends to establish, in accordance with article 76, the outer limits of its continental shelf beyond 200 nautical miles, it shall submit particulars of such limits to the Commission along with supporting scientific and technical data as soon as possible but in any case within 10 years of the entry into force of this Convention for that State. The coastal State shall at the same time give the names of any Commission members who have provided it with scientific and technical advice. Article 5 Unless the Commission decides otherwise, the Commission shall function by way of sub-commissions composed of seven members, appointed in a balanced manner taking into account the specific elements of each submission by a coastal State. Nationals of the coastal State making the submission who are members of the Commission and any Commission member who has assisted a coastal State by providing scientific and technical advice with respect to the delineation shall not be a member of the sub-commission dealing with that submission but has the right to participate as a member in the proceedings of the Commission concerning the said submission. The coastal State which has made a submission to the Commission may send its representatives to participate in the relevant proceedings without the right to vote. Article 6 1.
The sub-commission shall submit its recommendations to the Commission.
2. Approval by the Commission of the recommendations of the sub-commission shall be by a majority of two thirds of Commission members present and voting. 3. The recommendations of the Commission shall be submitted in writing to the coastal State which made the submission and to the Secretary-General of the United Nations. Article 7 Coastal States shall establish the outer limits of the continental shelf in conformity with the provisions of article 76, paragraph 8, and in accordance with the appropriate national procedures. Article 8 In the case of disagreement by the coastal State with the recommendations of the Commission, the coastal State shall, within a reasonable time, make a revised or new submission to the Commission. Article 9 The actions of the Commission shall not prejudice matters relating to delimitation of boundaries between States with opposite or adjacent coasts.
ANNEX III. BASIC CONDITIONS OF PROSPECTING, EXPLORATION AND EXPLOITATION Article 1 Title to minerals Title to minerals shall pass upon recovery in accordance with this Convention. Article 2 Prospecting (Draft) First Edition, 2011 ( Annex III - 145 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
1.
(a)
The Authority shall encourage prospecting in the Area.
(b) Prospecting shall be conducted only after the Authority has received a satisfactory written undertaking that the proposed prospector will comply with this Convention and the relevant rules, regulations and procedures of the Authority concerning cooperation in the training programmes referred to in articles 143 and 144 and the protection of the marine environment, and will accept verification by the Authority of compliance therewith. The proposed prospector shall, at the same time, notify the Authority of the approximate area or areas in which prospecting is to be conducted. (c)
Prospecting may be conducted simultaneously by more than one prospector in the same area or areas.
2. Prospecting shall not confer on the prospector any rights with respect to resources. A prospector may, however, recover a reasonable quantity of minerals to be used for testing. Article 3 Exploration and exploitation 1. The Enterprise, States Parties, and the other entities referred to in article 153, paragraph 2(b), may apply to the Authority for approval of plans of work for activities in the Area. 2. The Enterprise may apply with respect to any part of the Area, but applications by others with respect to reserved areas are subject to the additional requirements of article 9 of this Annex. 3. Exploration and exploitation shall be carried out only in areas specified in plans of work referred to in article 153, paragraph 3, and approved by the Authority in accordance with this Convention and the relevant rules, regulations and procedures of the Authority. 4.
Every approved plan of work shall: (a)
be in conformity with this Convention and the rules, regulations and procedures of the Authority;
(b) 4;
provide for control by the Authority of activities in the Area in accordance with article 153, paragraph
(c) confer on the operator, in accordance with the rules, regulations and procedures of the Authority, the exclusive right to explore for and exploit the specified categories of resources in the area covered by the plan of work. If, however, the applicant presents for approval a plan of work covering only the stage of exploration or the stage of exploitation, the approved plan of work shall confer such exclusive right with respect to that stage only. 5. Upon its approval by the Authority, every plan of work, except those presented by the Enterprise, shall be in the form of a contract concluded between the Authority and the applicant or applicants. Article 4 Qualifications of applicants 1. Applicants, other than the Enterprise, shall be qualified if they have the nationality or control and sponsorship required by article 153, paragraph 2(b), and if they follow the procedures and meet the qualification standards set forth in the rules, regulations and procedures of the Authority. 2. Except as provided in paragraph 6, such qualification standards shall relate to the financial and technical capabilities of the applicant and his performance under any previous contracts with the Authority. 3. Each applicant shall be sponsored by the State Party of which it is a national unless the applicant has more than one nationality, as in the case of a partnership or consortium of entities from several States, in which event all States (Draft) First Edition, 2011 ( Annex III - 146 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Parties involved shall sponsor the application, or unless the applicant is effectively controlled by another State Party or its nationals, in which event both States Parties shall sponsor the application. The criteria and procedures for implementation of the sponsorship requirements shall be set forth in the rules, regulations and procedures of the Authority. 4. The sponsoring State or States shall, pursuant to article 139, have the responsibility to ensure, within their legal systems, that a contractor so sponsored shall carry out activities in the Area in conformity with the terms of its contract and its obligations under this Convention. A sponsoring State shall not, however, be liable for damage caused by any failure of a contractor sponsored by it to comply with its obligations if that State Party has adopted laws and regulations and taken administrative measures which are, within the framework of its legal system, reasonably appropriate for securing compliance by persons under its jurisdiction. 5. The procedures for assessing the qualifications of States Parties which are applicants shall take into account their character as States. 6. The qualification standards shall require that every applicant, without exception, shall as part of his application undertake: (a) to accept as enforceable and comply with the applicable obligations created by the provisions of Part XI, the rules, regulations and procedures of the Authority, the decisions of the organs of the Authority and terms of his contracts with the Authority; (b)
to accept control by the Authority of activities in the Area, as authorized by this Convention;
(c) to provide the Authority with a written assurance that his obligations under the contract will be fulfilled in good faith; (d)
to comply with the provisions on the transfer of technology set forth in article 5 of this Annex. Article 5 Transfer of technology
1. When submitting a plan of work, every applicant shall make available to the Authority a general description of the equipment and methods to be used in carrying out activities in the Area, and other relevant non-proprietary information about the characteristics of such technology and information as to where such technology is available. 2. Every operator shall inform the Authority of revisions in the description and information made available pursuant to paragraph 1 whenever a substantial technological change or innovation is introduced. 3.
Every contract for carrying out activities in the Area shall contain the following undertakings by the contractor: (a) to make available to the Enterprise on fair and reasonable commercial terms and conditions, whenever the Authority so requests, the technology which he uses in carrying out activities in the Area under the contract, which the contractor is legally entitled to transfer. This shall be done by means of licences or other appropriate arrangements which the contractor shall negotiate with the Enterprise and which shall be set forth in a specific agreement supplementary to the contract. This undertaking may be invoked only if the Enterprise finds that it is unable to obtain the same or equally efficient and useful technology on the open market on fair and reasonable commercial terms and conditions; (b) to obtain a written assurance from the owner of any technology used in carrying out activities in the Area under the contract, which is not generally available on the open market and which is not covered by subparagraph (a), that the owner will, whenever the Authority so requests, make that technology available to the Enterprise under licence or other appropriate arrangements and on fair and reasonable commercial terms and conditions, to the same extent as made available to the contractor. If this assurance is not obtained, the technology in question shall not be used by the contractor in carrying out activities in the Area;
(Draft) First Edition, 2011 ( Annex III - 147 )
Notes in Constitutional Law I (Atty. Berne Guerrero) (c) to acquire from the owner by means of an enforceable contract, upon the request of the Enterprise and if it is possible to do so without substantial cost to the contractor, the legal right to transfer to the Enterprise any technology used by the contractor, in carrying out activities in the Area under the contract, which the contractor is otherwise not legally entitled to transfer and which is not generally available on the open market. In cases where there is a substantial corporate relationship between the contractor and the owner of the technology, the closeness of this relationship and the degree of control or influence shall be relevant to the determination whether all feasible measures have been taken to acquire such a right. In cases where the contractor exercises effective control over the owner, failure to acquire from the owner the legal right shall be considered relevant to the contractor's qualification for any subsequent application for approval of a plan of work; (d) to facilitate, upon the request of the Enterprise, the acquisition by the Enterprise of any technology covered by subparagraph (b), under licence or other appropriate arrangements and on fair and reasonable commercial terms and conditions, if the Enterprise decides to negotiate directly with the owner of the technology; (e) to take the same measures as are prescribed in subparagraphs (a), (b), (c) and (d) for the benefit of a developing State or group of developing States which has applied for a contract under article 9 of this Annex, provided that these measures shall be limited to the exploitation of the part of the area proposed by the contractor which has been reserved pursuant to article 8 of this Annex and provided that activities under the contract sought by the developing State or group of developing States would not involve transfer of technology to a third State or the nationals of a third State. The obligation under this provision shall only apply with respect to any given contractor where technology has not been requested by the Enterprise or transferred by that contractor to the Enterprise. 4. Disputes concerning undertakings required by paragraph 3, like other provisions of the contracts, shall be subject to compulsory settlement in accordance with Part XI and, in cases of violation of these undertakings, suspension or termination of the contract or monetary penalties may be ordered in accordance with article 18 of this Annex. Disputes as to whether offers made by the contractor are within the range of fair and reasonable commercial terms and conditions may be submitted by either party to binding commercial arbitration in accordance with the UNCITRAL Arbitration Rules or such other arbitration rules as may be prescribed in the rules, regulations and procedures of the Authority. If the finding is that the offer made by the contractor is not within the range of fair and reasonable commercial terms and conditions, the contractor shall be given 45 days to revise his offer to bring it within that range before the Authority takes any action in accordance with article 18 of this Annex. 5. If the Enterprise is unable to obtain on fair and reasonable commercial terms and conditions appropriate technology to enable it to commence in a timely manner the recovery and processing of minerals from the Area, either the Council or the Assembly may convene a group of States Parties composed of those which are engaged in activities in the Area, those which have sponsored entities which are engaged in activities in the Area and other States Parties having access to such technology. This group shall consult together and shall take effective measures to ensure that such technology is made available to the Enterprise on fair and reasonable commercial terms and conditions. Each such State Party shall take all feasible measures to this end within its own legal system. 6. In the case of joint ventures with the Enterprise, transfer of technology will be in accordance with the terms of the joint venture agreement. 7. The undertakings required by paragraph 3 shall be included in each contract for the carrying out of activities in the Area until 10 years after the commencement of commercial production by the Enterprise, and may be invoked during that period. 8. For the purposes of this article, "technology" means the specialized equipment and technical know-how, including manuals, designs, operating instructions, training and technical advice and assistance, necessary to assemble, maintain and operate a viable system and the legal right to use these items for that purpose on a non-exclusive basis. Article 6 Approval of plans of work
(Draft) First Edition, 2011 ( Annex III - 148 )
Notes in Constitutional Law I (Atty. Berne Guerrero) 1. Six months after the entry into force of this Convention, and thereafter each fourth month, the Authority shall take up for consideration proposed plans of work. 2. When considering an application for approval of a plan of work in the form of a contract, the Authority shall first ascertain whether: (a) the applicant has complied with the procedures established for applications in accordance with article 4 of this Annex and has given the Authority the undertakings and assurances required by that article. In cases of non-compliance with these procedures or in the absence of any of these undertakings and assurances, the applicant shall be given 45 days to remedy these defects; (b)
the applicant possesses the requisite qualifications provided for in article 4 of this Annex.
3. All proposed plans of work shall be taken up in the order in which they are received. The proposed plans of work shall comply with and be governed by the relevant provisions of this Convention and the rules, regulations and procedures of the Authority, including those on operational requirements, financial contributions and the undertakings concerning the transfer of technology. If the proposed plans of work conform to these requirements, the Authority shall approve them provided that they are in accordance with the uniform and non-discriminatory requirements set forth in the rules, regulations and procedures of the Authority, unless: (a) part or all of the area covered by the proposed plan of work is included in an approved plan of work or a previously submitted proposed plan of work which has not yet been finally acted on by the Authority; (b) part or all of the area covered by the proposed plan of work is disapproved by the Authority pursuant to article 162, paragraph 2(x); or (c)
the proposed plan of work has been submitted or sponsored by a State Party which already holds: (i) plans of work for exploration and exploitation of polymetallic nodules in non-reserved areas that, together with either part of the area covered by the application for a plan of work, exceed in size 30 per cent of a circular area of 400,000 square kilometres surrounding the centre of either part of the area covered by the proposed plan of work; (ii) plans of work for the exploration and exploitation of polymetallic nodules in non-reserved areas which, taken together, constitute 2 per cent of the total seabed area which is not reserved or disapproved for exploitation pursuant to article 162, paragraph (2)(x).
4. For the purpose of the standard set forth in paragraph 3(c), a plan of work submitted by a partnership or consortium shall be counted on a pro rata basis among the sponsoring States Parties involved in accordance with article 4, paragraph 3, of this Annex. The Authority may approve plans of work covered by paragraph 3(c) if it determines that such approval would not permit a State Party or entities sponsored by it to monopolize the conduct of activities in the Area or to preclude other States Parties from activities in the Area. 5. Notwithstanding paragraph 3(a), after the end of the interim period specified in article 151, paragraph 3, the Authority may adopt by means of rules, regulations and procedures other procedures and criteria consistent with this Convention for deciding which applicants shall have plans of work approved in cases of selection among applicants for a proposed area. These procedures and criteria shall ensure approval of plans of work on an equitable and nondiscriminatory basis. Article 7 Selection among applicants for production authorizations 1. Six months after the entry into force of this Convention, and thereafter each fourth month, the Authority shall take up for consideration applications for production authorizations submitted during the immediately preceding period. The Authority shall issue the authorizations applied for if all such applications can be approved without exceeding the production limitation or contravening the obligations of the Authority under a commodity agreement or arrangement to (Draft) First Edition, 2011 ( Annex III - 149 )
Notes in Constitutional Law I (Atty. Berne Guerrero) which it has become a party, as provided in article 151. 2. When a selection must be made among applicants for production authorizations because of the production limitation set forth in article 151, paragraphs 2 to 7, or because of the obligations of the Authority under a commodity agreement or arrangement to which it has become a party, as provided for in article 151, paragraph 1, the Authority shall make the selection on the basis of objective and non-discriminatory standards set forth in its rules, regulations and procedures. 3.
In the application of paragraph 2, the Authority shall give priority to those applicants which: (a) give better assurance of performance, taking into account their financial and technical qualifications and their performance, if any, under previously approved plans of work; (b) provide earlier prospective financial benefits to the Authority, taking into account when commercial production is scheduled to begin; (c)
have already invested the most resources and effort in prospecting or exploration.
4. Applicants which are not selected in any period shall have priority in subsequent periods until they receive a production authorization. 5. Selection shall be made taking into account the need to enhance opportunities for all States Parties, irrespective of their social and economic systems or geographical locations so as to avoid discrimination against any State or system, to participate in activities in the Area and to prevent monopolization of those activities. 6. Whenever fewer reserved areas than non-reserved areas are under exploitation, applications for production authorizations with respect to reserved areas shall have priority. 7.
The decisions referred to in this article shall be taken as soon as possible after the close of each period. Article 8 Reservation of areas
Each application, other than those submitted by the Enterprise or by any other entities for reserved areas, shall cover a total area, which need not be a single continuous area, sufficiently large and of sufficient estimated commercial value to allow two mining operations. The applicant shall indicate the coordinates dividing the area into two parts of equal estimated commercial value and submit all the data obtained by him with respect to both parts. Without prejudice to the powers of the Authority pursuant to article 17 of this Annex, the data to be submitted concerning polymetallic nodules shall relate to mapping, sampling, the abundance of nodules, and their metal content. Within 45 days of receiving such data, the Authority shall designate which part is to be reserved solely for the conduct of activities by the Authority through the Enterprise or in association with developing States. This designation may be deferred for a further period of 45 days if the Authority requests an independent expert to assess whether all data required by this article has been submitted. The area designated shall become a reserved area as soon as the plan of work for the non-reserved area is approved and the contract is signed. Article 9 Activities in reserved areas 1. The Enterprise shall be given an opportunity to decide whether it intends to carry out activities in each reserved area. This decision may be taken at any time, unless a notification pursuant to paragraph 4 is received by the Authority, in which event the Enterprise shall take its decision within a reasonable time. The Enterprise may decide to exploit such areas in joint ventures with the interested State or entity. 2. The Enterprise may conclude contracts for the execution of part of its activities in accordance with Annex IV, article 12. It may also enter into joint ventures for the conduct of such activities with any entities which are eligible to carry out activities in the Area pursuant to article 153, paragraph 2(b). When considering such joint ventures, the (Draft) First Edition, 2011 ( Annex III - 150 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Enterprise shall offer to States Parties which are developing States and their nationals the opportunity of effective participation. 3. The Authority may prescribe, in its rules, regulations and procedures, substantive and procedural requirements and conditions with respect to such contracts and joint ventures. 4. Any State Party which is a developing State or any natural or juridical person sponsored by it and effectively controlled by it or by other developing State which is a qualified applicant, or any group of the foregoing, may notify the Authority that it wishes to submit a plan of work pursuant to article 6 of this Annex with respect to a reserved area. The plan of work shall be considered if the Enterprise decides, pursuant to paragraph 1, that it does not intend to carry out activities in that area. Article 10 Preference and priority among applicants An operator who has an approved plan of work for exploration only, as provided in article 3, paragraph 4(c), of this Annex shall have a preference and a priority among applicants for a plan of work covering exploitation of the same area and resources. However, such preference or priority may be withdrawn if the operator's performance has not been satisfactory. Article 11 Joint arrangements 1. Contracts may provide for joint arrangements between the contractor and the Authority through the Enterprise, in the form of joint ventures or production sharing, as well as any other form of joint arrangement, which shall have the same protection against revision, suspension or termination as contracts with the Authority. 2. Contractors entering into such joint arrangements with the Enterprise may receive financial incentives as provided for in article 13 of this Annex. 3. Partners in joint ventures with the Enterprise shall be liable for the payments required by article 13 of this Annex to the extent of their share in the joint ventures, subject to financial incentives as provided for in that article. Article 12 Activities carried out by the Enterprise 1. Activities in the Area carried out by the Enterprise pursuant to article 153, paragraph 2(a), shall be governed by Part XI, the rules, regulations and procedures of the Authority and its relevant decisions. 2. Any plan of work submitted by the Enterprise shall be accompanied by evidence supporting its financial and technical capabilities. Article 13 Financial terms of contracts 1. In adopting rules, regulations and procedures concerning the financial terms of a contract between the Authority and the entities referred to in article 153, paragraph 2(b), and in negotiating those financial terms in accordance with Part XI and those rules, regulations and procedures, the Authority shall be guided by the following objectives: (a)
to ensure optimum revenues for the Authority from the proceeds of commercial production;
(b)
to attract investments and technology to the exploration and exploitation of the Area;
(c)
to ensure equality of financial treatment and comparable financial obligations for contractors;
(d)
to provide incentives on a uniform and non-discriminatory basis for contractors to undertake joint (Draft) First Edition, 2011 ( Annex III - 151 )
Notes in Constitutional Law I (Atty. Berne Guerrero) arrangements with the Enterprise and developing States or their nationals, to stimulate the transfer of technology thereto, and to train the personnel of the Authority and of developing States; (e) to enable the Enterprise to engage in seabed mining effectively at the same time as the entities referred to in article 153, paragraph 2(b); and (f) to ensure that, as a result of the financial incentives provided to contractors under paragraph 14, under the terms of contracts reviewed in accordance with article 19 of this Annex or under the provisions of article 11 of this Annex with respect to joint ventures, contractors are not subsidized so as to be given an artificial competitive advantage with respect to land-based miners. 2. A fee shall be levied for the administrative cost of processing an application for approval of a plan of work in the form of a contract and shall be fixed at an amount of $US 500,000 per application. The amount of the fee shall be reviewed from time to time by the Council in order to ensure that it covers the administrative cost incurred. If such administrative cost incurred by the Authority in processing an application is less than the fixed amount, the Authority shall refund the difference to the applicant. 3. A contractor shall pay an annual fixed fee of $US 1 million from the date of entry into force of the contract. If the approved date of commencement of commercial production is postponed because of a delay in issuing the production authorization, in accordance with article 151, the annual fixed fee shall be waived for the period of postponement. From the date of commencement of commercial production, the contractor shall pay either the production charge or the annual fixed fee, whichever is greater. 4. Within a year of the date of commencement of commercial production, in conformity with paragraph 3, a contractor shall choose to make his financial contribution to the Authority by either:
5.
(a)
paying a production charge only; or
(b)
paying a combination of a production charge and a share of net proceeds.
(a) If a contractor chooses to make his financial contribution to the Authority by paying a production charge only, it shall be fixed at a percentage of the market value of the processed metals produced from the polymetallic nodules recovered from the area covered by the contract. This percentage shall be fixed as follows: (i)
years 1-10 of commercial production
5 per cent
(ii)
years 11 to the end of commercial production 12 per cent
(b) The said market value shall be the product of the quantity of the processed metals produced from the polymetallic nodules extracted from the area covered by the contract and the average price for those metals during the relevant accounting year, as defined in paragraphs 7 and 8. 6. If a contractor chooses to make his financial contribution to the Authority by paying a combination of a production charge and a share of net proceeds, such payments shall be determined as follows: (a) The production charge shall be fixed at a percentage of the market value, determined in accordance with subpara-graph (b), of the processed metals produced from the polymetallic nodules recovered from the area covered by the contract. This percentage shall be fixed as follows: (i)
first period of commercial production
2 per cent
(ii)
second period of commercial production
4 per cent
If, in the second period of commercial production, as defined in subparagraph (d), the return on investment in any accounting year as defined in subparagraph (m) falls below 15 per cent as a result of the payment of the production charge at 4 per cent, the production charge shall be 2 per cent instead of 4 per cent in that accounting (Draft) First Edition, 2011 ( Annex III - 152 )
Notes in Constitutional Law I (Atty. Berne Guerrero) year. (b) The said market value shall be the product of the quantity of the processed metals produced from the polymetallic nodules recovered from the area covered by the contract and the average price for those metals during the relevant accounting year as defined in paragraphs 7 and 8. (c)
(i) The Authority's share of net proceeds shall be taken out of that portion of the contractor's net proceeds which is attributable to the mining of the resources of the area covered by the contract, referred to hereinafter as attributable net proceeds. (ii) The Authority's share of attributable net proceeds shall be determined in accordance with the following incremental schedule: Portion of attributable net proceeds
Share of the Authority First period of Second period of commercial production commercial production
(d)
That portion representing a return on 35 per cent investment which is greater than 0 per cent, but less than 10 per cent
40 per cent
That portion representing a return on 42.5 per cent investment which is 10 per cent or greater, but less than 20 per cent
50 per cent
That portion representing a return on 50 per cent investment which is 20 per cent or greater
70 per cent
(i) The first period of commercial production referred to in subparagraphs (a) and (c) shall commence in the first accounting year of commercial production and terminate in the accounting year in which the contractor's development costs with interest on the unrecovered portion thereof are fully recovered by his cash surplus, as follows: In the first accounting year during which development costs are incurred, unrecovered development costs shall equal the development costs less cash surplus in that year. In each subsequent accounting year, unrecovered development costs shall equal the unrecovered development costs at the end of the preceding accounting year, plus interest thereon at the rate of 10 per cent per annum, plus development costs incurred in the current accounting year and less contractor's cash surplus in the current accounting year. The accounting year in which unrecovered development costs become zero for the first time shall be the accounting year in which the contractor's development costs with interest on the unrecovered portion thereof are fully recovered by his cash surplus. The contractor's cash surplus in any accounting year shall be his gross proceeds less his operating costs and less his payments to the Authority under subparagraph (c). (ii) The second period of commercial production shall commence in the accounting year following the termination of the first period of commercial production and shall continue until the end of the contract.
(e) "Attributable net proceeds" means the product of the contractor's net proceeds and the ratio of the development costs in the mining sector to the contractor's development costs. If the contractor engages in mining, transporting polymetallic nodules and production primarily of three processed metals, namely, cobalt, copper and nickel, the amount of attributable net proceeds shall not be less than 25 per cent of the contractor's net proceeds. Subject to subparagraph (n), in all other cases, including those where the contractor engages in mining, transporting polymetallic nodules, and production primarily of four processed metals, namely, cobalt, copper, manganese and nickel, the Authority may, in its rules, regulations and procedures, prescribe appropriate
(Draft) First Edition, 2011 ( Annex III - 153 )
Notes in Constitutional Law I (Atty. Berne Guerrero) floors which shall bear the same relationship to each case as the 25 per cent floor does to the three-metal case. (f) "Contractor's net proceeds" means the contractor's gross proceeds less his operating costs and less the recovery of his development costs as set out in subparagraph (j). (g)
(i) If the contractor engages in mining, transporting polymetallic nodules and production of processed metals, "contractor's gross proceeds" means the gross revenues from the sale of the processed metals and any other monies deemed reasonably attributable to operations under the contract in accordance with the financial rules, regulations and procedures of the Authority. (ii) In all cases other than those specified in subparagraphs (g)(i) and (n)(iii), "contractor's gross proceeds" means the gross revenues from the sale of the semi-processed metals from the polymetallic nodules recovered from the area covered by the contract, and any other monies deemed reasonably attributable to operations under the contract in accordance with the financial rules, regulations and procedures of the Authority.
(h)
"Contractor's development costs" means: (i) all expenditures incurred prior to the commencement of commercial production which are directly related to the development of the productive capacity of the area covered by the contract and the activities related thereto for operations under the contract in all cases other than that specified in subparagraph (n), in conformity with generally recognized accounting principles, including, inter alia, costs of machinery, equipment, ships, processing plant, construction, buildings, land, roads, prospecting and exploration of the area covered by the contract, research and development, interest, required leases, licences and fees; and (ii) expenditures similar to those set forth in (i) above incurred subsequent to the commencement of commercial production and necessary to carry out the plan of work, except those chargeable to operating costs.
(i) The proceeds from the disposal of capital assets and the market value of those capital assets which are no longer required for operations under the contract and which are not sold shall be deducted from the contractor's development costs during the relevant accounting year. When these deductions exceed the contractor's development costs the excess shall be added to the contractor's gross proceeds. (j) The contractor's development costs incurred prior to the commencement of commercial production referred to in subparagraphs (h)(i) and (n)(iv) shall be recovered in 10 equal annual instalments from the date of commencement of commercial production. The contractor's development costs incurred subsequent to the commencement of commercial production referred to in subparagraphs (h)(ii) and (n)(iv) shall be recovered in 10 or fewer equal annual instalments so as to ensure their complete recovery by the end of the contract. (k) "Contractor's operating costs" means all expenditures incurred after the commencement of commercial production in the operation of the productive capacity of the area covered by the contract and the activities related thereto for operations under the contract, in conformity with generally recognized accounting principles, including, inter alia, the annual fixed fee or the production charge, whichever is greater, expenditures for wages, salaries, employee benefits, materials, services, transporting, processing and marketing costs, interest, utilities, preservation of the marine environment, overhead and administrative costs specifically related to operations under the contract, and any net operating losses carried forward or backward as specified herein. Net operating losses may be carried forward for two consecutive years except in the last two years of the contract in which case they may be carried backward to the two preceding years. (l) If the contractor engages in mining, transporting of polymetallic nodules, and production of processed and semi-processed metals, "development costs of the mining sector" means the portion of the contractor's development costs which is directly related to the mining of the resources of the area covered by the contract, in conformity with generally recognized accounting principles, and the financial rules, regulations and procedures of the Authority, including, inter alia, application fee, annual fixed fee and, where applicable, costs of (Draft) First Edition, 2011 ( Annex III - 154 )
Notes in Constitutional Law I (Atty. Berne Guerrero) prospecting and exploration of the area covered by the contract, and a portion of research and development costs. (m) "Return on investment" in any accounting year means the ratio of attributable net proceeds in that year to the development costs of the mining sector. For the purpose of computing this ratio the development costs of the mining sector shall include expenditures on new or replacement equipment in the mining sector less the original cost of the equipment replaced. (n)
If the contractor engages in mining only: (i)
"attributable net proceeds" means the whole of the contractor's net proceeds;
(ii)
"contractor's net proceeds" shall be as defined in subparagraph (f);
(iii) "contractor's gross proceeds" means the gross revenues from the sale of the polymetallic nodules, and any other monies deemed reasonably attributable to operations under the contract in accordance with the financial rules, regulations and procedures of the Authority; (iv) "contractor's development costs" means all expenditures incurred prior to the commencement of commercial production as set forth in subparagraph (h)(i), and all expenditures incurred subsequent to the commencement of commercial production as set forth in subparagraph (h)(ii), which are directly related to the mining of the resources of the area covered by the contract, in conformity with generally recognized accounting principles; (v) "contractor's operating costs" means the contractor's operating costs as in subparagraph (k) which are directly related to the mining of the resources of the area covered by the contract in conformity with generally recognized accounting principles; (vi) "return on investment" in any accounting year means the ratio of the contractor's net proceeds in that year to the contractor's development costs. For the purpose of computing this ratio, the contractor's development costs shall include expenditures on new or replacement equipment less the original cost of the equipment replaced. (o) The costs referred to in subparagraphs (h), (k), (l) and (n) in respect of interest paid by the contractor shall be allowed to the extent that, in all the circumstances, the Authority approves, pursuant to article 4, paragraph 1, of this Annex, the debt-equity ratio and the rates of interest as reasonable, having regard to existing commercial practice. (p) The costs referred to in this paragraph shall not be interpreted as including payments of corporate income taxes or similar charges levied by States in respect of the operations of the contractor. 7.
(a) "Processed metals", referred to in paragraphs 5 and 6, means the metals in the most basic form in which they are customarily traded on international terminal markets. For this purpose, the Authority shall specify, in its financial rules, regulations and procedures, the relevant international terminal market. For the metals which are not traded on such markets, "processed metals" means the metals in the most basic form in which they are customarily traded in representative arm's length transactions. (b) If the Authority cannot otherwise determine the quantity of the processed metals produced from the polymetallic nodules recovered from the area covered by the contract referred to in paragraphs 5(b) and 6(b), the quantity shall be determined on the basis of the metal content of the nodules, processing recovery efficiency and other relevant factors, in accordance with the rules, regulations and procedures of the Authority and in conformity with generally recognized accounting principles.
8. If an international terminal market provides a representative pricing mechanism for processed metals, polymetallic nodules and semi-processed metals from the nodules, the average price on that market shall be used. In all other cases, the Authority shall, after consulting the contractor, determine a fair price for the said products in accordance (Draft) First Edition, 2011 ( Annex III - 155 )
Notes in Constitutional Law I (Atty. Berne Guerrero) with paragraph 9. 9.
(a) All costs, expenditures, proceeds and revenues and all determinations of price and value referred to in this article shall be the result of free market or arm's length transactions. In the absence thereof, they shall be determined by the Authority, after consulting the contractor, as though they were the result of free market or arm's length transactions, taking into account relevant transactions in other markets. (b) In order to ensure compliance with and enforcement of the provisions of this paragraph, the Authority shall be guided by the principles adopted for, and the interpretation given to, arm's length transactions by the Commission on Transnational Corporations of the United Nations, the Group of Experts on Tax Treaties between Developing and Developed Countries and other international organizations, and shall, in its rules, regulations and procedures, specify uniform and internationally acceptable accounting rules and procedures, and the means of selection by the contractor of certified independent accountants acceptable to the Authority for the purpose of carrying out auditing in compliance with those rules, regulations and procedures.
10. The contractor shall make available to the accountants, in accordance with the financial rules, regulations and procedures of the Authority, such financial data as are required to determine compliance with this article. 11. All costs, expenditures, proceeds and revenues, and all prices and values referred to in this article, shall be determined in accordance with generally recognized accounting principles and the financial rules, regulations and procedures of the Authority. 12. Payments to the Authority under paragraphs 5 and 6 shall be made in freely usable currencies or currencies which are freely available and effectively usable on the major foreign exchange markets or, at the contractor's option, in the equivalents of processed metals at market value. The market value shall be determined in accordance with paragraph 5(b). The freely usable currencies and currencies which are freely available and effectively usable on the major foreign exchange markets shall be defined in the rules, regulations and procedures of the Authority in accordance with prevailing international monetary practice. 13. All financial obligations of the contractor to the Authority, as well as all his fees, costs, expenditures, proceeds and revenues referred to in this article, shall be adjusted by expressing them in constant terms relative to a base year. 14. The Authority may, taking into account any recommendations of the Economic Planning Commission and the Legal and Technical Commission, adopt rules, regulations and procedures that provide for incentives, on a uniform and non-discriminatory basis, to contractors to further the objectives set out in paragraph 1. 15. In the event of a dispute between the Authority and a contractor over the interpretation or application of the financial terms of a contract, either party may submit the dispute to binding commercial arbitration, unless both parties agree to settle the dispute by other means, in accordance with article 188, paragraph 2. Article 14 Transfer of data 1. The operator shall transfer to the Authority, in accordance with its rules, regulations and procedures and the terms and conditions of the plan of work, at time intervals determined by the Authority all data which are both necessary for and relevant to the effective exercise of the powers and functions of the principal organs of the Authority in respect of the area covered by the plan of work. 2. Transferred data in respect of the area covered by the plan of work, deemed proprietary, may only be used for the purposes set forth in this article. Data necessary for the formulation by the Authority of rules, regulations and procedures concerning protection of the marine environment and safety, other than equipment design data, shall not be deemed proprietary. 3. Data transferred to the Authority by prospectors, applicants for contracts or contractors, deemed proprietary, shall not be disclosed by the Authority to the Enterprise or to anyone external to the Authority, but data on the reserved areas may be disclosed to the Enterprise. Such data transferred by such persons to the Enterprise shall not be disclosed (Draft) First Edition, 2011 ( Annex III - 156 )
Notes in Constitutional Law I (Atty. Berne Guerrero) by the Enterprise to the Authority or to anyone external to the Authority. Article 15 Training programmes The contractor shall draw up practical programmes for the training of personnel of the Authority and developing States, including the participation of such personnel in all activities in the Area which are covered by the contract, in accordance with article 144, paragraph 2. Article 16 Exclusive right to explore and exploit The Authority shall, pursuant to Part XI and its rules, regulations and procedures, accord the operator the exclusive right to explore and exploit the area covered by the plan of work in respect of a specified category of resources and shall ensure that no other entity operates in the same area for a different category of resources in a manner which might interfere with the operations of the operator. The operator shall have security of tenure in accordance with article 153, paragraph 6. Article 17 Rules, regulations and procedures of the Authority 1. The Authority shall adopt and uniformly apply rules, regulations and procedures in accordance with article 160, paragraph 2(f)(ii), and article 162, paragraph 2(o)(ii), for the exercise of its functions as set forth in Part XI on, inter alia, the following matters: (a)
administrative procedures relating to prospecting, exploration and exploitation in the Area;
(b)
operations: (i)
size of area;
(ii)
duration of operations;
(iii) performance requirements including assurances pursuant to article 4, paragraph 6(c), of this Annex; (iv)
categories of resources;
(v)
renunciation of areas;
(vi)
progress reports;
(vii)
submission of data;
(viii)
inspection and supervision of operations;
(ix)
prevention of interference with other activities in the marine environment;
(x)
transfer of rights and obligations by a contractor;
(xi) procedures for transfer of technology to developing States in accordance with article 144 and for their direct participation; (xii) mining standards and practices, including those relating to operational safety, conservation of the resources and the protection of the marine environment;
(Draft) First Edition, 2011 ( Annex III - 157 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
(c)
(xiii)
definition of commercial production;
(xiv)
qualification standards for applicants;
financial matters: (i) establishment of uniform and non-discriminatory costing and accounting rules and the method of selection of auditors;
(d) 2(d). 2.
(ii)
apportionment of proceeds of operations;
(iii)
the incentives referred to in article 13 of this Annex;
implementation of decisions taken pursuant to article 151, paragraph 10, and article 164, paragraph
Rules, regulations and procedures on the following items shall fully reflect the objective criteria set out below: (a)
Size of areas: The Authority shall determine the appropriate size of areas for exploration which may be up to twice as large as those for exploitation in order to permit intensive exploration operations. The size of area shall be calculated to satisfy the requirements of article 8 of this Annex on reservation of areas as well as stated production requirements consistent with article 151 in accordance with the terms of the contract taking into account the state of the art of technology then available for seabed mining and the relevant physical characteristics of the areas. Areas shall be neither smaller nor larger than are necessary to satisfy this objective.
(b)
Duration of operations: (i)
Prospecting shall be without time-limit;
(ii) Exploration should be of sufficient duration to permit a thorough survey of the specific area, the design and construction of mining equipment for the area and the design and construction of small and medium-size processing plants for the purpose of testing mining and processing systems; (iii) The duration of exploitation should be related to the economic life of the mining project, taking into consideration such factors as the depletion of the ore, the useful life of mining equipment and processing facilities and commercial viability. Exploitation should be of sufficient duration to permit commercial extraction of minerals of the area and should include a reasonable time period for construction of commercial-scale mining and processing systems, during which period commercial production should not be required. The total duration of exploitation, however, should also be short enough to give the Authority an opportunity to amend the terms and conditions of the plan of work at the time it considers renewal in accordance with rules, regulations and procedures which it has adopted subsequent to approving the plan of work. (c)
Performance requirements: The Authority shall require that during the exploration stage periodic expenditures be made by the operator which are reasonably related to the size of the area covered by the plan of work and the expenditures which would be expected of a bona fide operator who intended to bring the area into commercial production within the time-limits established by the Authority. The required expenditures should not be established at a level which would discourage prospective operators with less costly technology than is prevalently in use. The Authority shall establish a maximum time interval, after the exploration stage is completed and the exploitation stage begins, to achieve commercial production. To determine this interval, the Authority should take into consideration that construction of large-scale (Draft) First Edition, 2011 ( Annex III - 158 )
Notes in Constitutional Law I (Atty. Berne Guerrero) mining and processing systems cannot be initiated until after the termination of the exploration stage and the commencement of the exploitation stage. Accordingly, the interval to bring an area into commercial production should take into account the time necessary for this construction after the completion of the exploration stage and reasonable allowance should be made for unavoidable delays in the construction schedule. Once commercial production is achieved, the Authority shall within reasonable limits and taking into consideration all relevant factors require the operator to maintain commercial production throughout the period of the plan of work. (d)
Categories of resources: In determining the category of resources in respect of which a plan of work may be approved, the Authority shall give emphasis inter alia to the following characteristics: (i)
that certain resources require the use of similar mining methods; and
(ii) that some resources can be developed simultaneously without undue interference between operators developing different resources in the same area. Nothing in this subparagraph shall preclude the Authority from approving a plan of work with respect to more than one category of resources in the same area to the same applicant. (e)
Renunciation of areas: The operator shall have the right at any time to renounce without penalty the whole or part of his rights in the area covered by a plan of work.
(f)
Protection of the marine environment: Rules, regulations and procedures shall be drawn up in order to secure effective protection of the marine environment from harmful effects directly resulting from activities in the Area or from shipboard processing immediately above a mine site of minerals derived from that mine site, taking into account the extent to which such harmful effects may directly result from drilling, dredging, coring and excavation and from disposal, dumping and discharge into the marine environment of sediment, wastes or other effluents.
(g)
Commercial production: Commercial production shall be deemed to have begun if an operator engages in sustained large-scale recovery operations which yield a quantity of materials sufficient to indicate clearly that the principal purpose is large-scale production rather than production intended for information gathering, analysis or the testing of equipment or plant. Article 18 Penalties
1.
A contractor's rights under the contract may be suspended or terminated only in the following cases: (a) if, in spite of warnings by the Authority, the contractor has conducted his activities in such a way as to result in serious, persistent and wilful violations of the fundamental terms of the contract, Part XI and the rules, regulations and procedures of the Authority; or (b) if the contractor has failed to comply with a final binding decision of the dispute settlement body applicable to him.
2. In the case of any violation of the contract not covered by paragraph 1(a), or in lieu of suspension or termination under paragraph 1(a), the Authority may impose upon the contractor monetary penalties proportionate to the seriousness (Draft) First Edition, 2011 ( Annex III - 159 )
Notes in Constitutional Law I (Atty. Berne Guerrero) of the violation. 3. Except for emergency orders under article 162, paragraph 2(w), the Authority may not execute a decision involving monetary penalties, suspension or termination until the contractor has been accorded a reasonable opportunity to exhaust the judicial remedies available to him pursuant to Part XI, section 5. Article 19 Revision of contract 1. When circumstances have arisen or are likely to arise which, in the opinion of either party, would render the contract inequitable or make it impracticable or impossible to achieve the objectives set out in the contract or in Part XI, the parties shall enter into negotiations to revise it accordingly. 2. Any contract entered into in accordance with article 153, paragraph 3, may be revised only with the consent of the parties. Article 20 Transfer of rights and obligations The rights and obligations arising under a contract may be transferred only with the consent of the Authority, and in accordance with its rules, regulations and procedures. The Authority shall not unreasonably withhold consent to the transfer if the proposed transferee is in all respects a qualified applicant and assumes all of the obligations of the transferor and if the transfer does not confer to the transferee a plan of work, the approval of which would be forbidden by article 6, paragraph 3(c), of this Annex. Article 21 Applicable law 1. The contract shall be governed by the terms of the contract, the rules, regulations and procedures of the Authority, Part XI and other rules of international law not incompatible with this Convention. 2. Any final decision rendered by a court or tribunal having jurisdiction under this Convention relating to the rights and obligations of the Authority and of the contractor shall be enforceable in the territory of each State Party. 3. No State Party may impose conditions on a contractor that are inconsistent with Part XI. However, the application by a State Party to contractors sponsored by it, or to ships flying its flag, of environmental or other laws and regulations more stringent than those in the rules, regulations and procedures of the Authority adopted pursuant to article 17, paragraph 2(f), of this Annex shall not be deemed inconsistent with Part XI. Article 22 Responsibility The contractor shall have responsibility or liability for any damage arising out of wrongful acts in the conduct of its operations, account being taken of contributory acts or omissions by the Authority. Similarly, the Authority shall have responsibility or liability for any damage arising out of wrongful acts in the exercise of its powers and functions, including violations under article 168, paragraph 2, account being taken of contributory acts or omissions by the contractor. Liability in every case shall be for the actual amount of damage.
ANNEX IV. STATUTE OF THE ENTERPRISE Article 1 Purposes 1.
The Enterprise is the organ of the Authority which shall carry out activities in the Area directly, pursuant to (Draft) First Edition, 2011 ( Annex III - 160 )
Notes in Constitutional Law I (Atty. Berne Guerrero) article 153, paragraph 2 (a), as well as the transporting, processing and marketing of minerals recovered from the Area. 2. In carrying out its purposes and in the exercise of its functions, the Enterprise shall act in accordance with this Convention and the rules, regulations and procedures of the Authority. 3. In developing the resources of the Area pursuant to paragraph 1, the Enterprise shall, subject to this Convention, operate in accordance with sound commercial principles. Article 2 Relationship to the Authority 1. Pursuant to article 170, the Enterprise shall act in accordance with the general policies of the Assembly and the directives of the Council. 2.
Subject to paragraph l, the Enterprise shall enjoy autonomy in the conduct of its operations.
3. Nothing in this Convention shall make the Enterprise liable for the acts or obligations of the Authority, or make the Authority liable for the acts or obligations of the Enterprise. Article 3 Limitation of liability Without prejudice to article 11, paragraph 3, of this Annex, no member of the Authority shall be liable by reason only of its membership for the acts or obligations of the Enterprise. Article 4 Structure The Enterprise shall have a Governing Board, a Director-General and the staff necessary for the exercise of its functions. Article 5 Governing Board 1. The Governing Board shall be composed of 15 members elected by the Assembly in accordance with article 160, paragraph 2(c). In the election of the members of the Board, due regard shall be paid to the principle of equitable geographical distribution. In submitting nominations of candidates for election to the Board, members of the Authority shall bear in mind the need to nominate candidates of the highest standard of competence, with qualifications in relevant fields, so as to ensure the viability and success of the Enterprise. 2. Members of the Board shall be elected for four years and may be re-elected; and due regard shall be paid to the principle of rotation of membership. 3. Members of the Board shall continue in office until their successors are elected. If the office of a member of the Board becomes vacant, the Assembly shall, in accordance with article 160, paragraph 2(c), elect a new member for the remainder of his predecessor's term. 4. Members of the Board shall act in their personal capacity. In the performance of their duties they shall not seek or receive instructions from any government or from any other source. Each member of the Authority shall respect the independent character of the members of the Board and shall refrain from all attempts to influence any of them in the discharge of their duties. 5. Each member of the Board shall receive remuneration to be paid out of the funds of the Enterprise. The amount of remuneration shall be fixed by the Assembly, upon the recommendation of the Council. 6. The Board shall normally function at the principal office of the Enterprise and shall meet as often as the business of the Enterprise may require. (Draft) First Edition, 2011 ( Annex III - 161 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
7.
Two thirds of the members of the Board shall constitute a quorum.
8. Each member of the Board shall have one vote. All matters before the Board shall be decided by a majority of its members. If a member has a conflict of interest on a matter before the Board he shall refrain from voting on that matter. 9. Any member of the Authority may ask the Board for information in respect of its operations which particularly affect that member. The Board shall endeavour to provide such information. Article 6 Powers and functions of the Governing Board The Governing Board shall direct the operations of the Enterprise. Subject to this Convention, the Governing Board shall exercise the powers necessary to fulfil the purposes of the Enterprise, including powers: (a)
to elect a Chairman from among its members;
(b)
to adopt its rules of procedure;
(c) to draw up and submit formal written plans of work to the Council in accordance with article 153, paragraph 3, and article 162, paragraph 2(j); (d)
to develop plans of work and programmes for carrying out the activities specified in article 170;
(e) to prepare and submit to the Council applications for production authorizations in accordance with article 151, paragraphs 2 to 7; (f) to authorize negotiations concerning the acquisition of technology, including those provided for in Annex III, article 5, paragraph 3(a), (c) and (d), and to approve the results of those negotiations; (g) to establish terms and conditions, and to authorize negotiations, concerning joint ventures and other forms of joint arrangements referred to in Annex III, articles 9 and 11, and to approve the results of such negotiations; (h) to recommend to the Assembly what portion of the net income of the Enterprise should be retained as its reserves in accordance with article 160, paragraph 2(f), and article 10 of this Annex; (i)
to approve the annual budget of the Enterprise;
(j)
to authorize the procurement of goods and services in accordance with article 12, paragraph 3, of this Annex;
(k)
to submit an annual report to the Council in accordance with article 9 of this Annex;
(l) to submit to the Council for the approval of the Assembly draft rules in respect of the organization, management, appointment and dismissal of the staff of the Enterprise and to adopt regulations to give effect to such rules; (m) to borrow funds and to furnish such collateral or other security as it may determine in accordance with article 11, paragraph 2, of this Annex; (n) to enter into any legal proceedings, agreements and transactions and to take any other actions in accordance with article 13 of this Annex; (o) to delegate, subject to the approval of the Council, any non-discretionary powers to the Director-General and to its committees.
(Draft) First Edition, 2011 ( Annex III - 162 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Article 7 Director-General and staff of the Enterprise 1. The Assembly shall, upon the recommendation of the Council and the nomination of the Governing Board, elect the Director-General of the Enterprise who shall not be a member of the Board. The Director-General shall hold office for a fixed term, not exceeding five years, and may be re-elected for further terms. 2. The Director-General shall be the legal representative and chief executive of the Enterprise and shall be directly responsible to the Board for the conduct of the operations of the Enterprise. He shall be responsible for the organization, management, appointment and dismissal of the staff of the Enterprise in accordance with the rules and regulations referred to in article 6, subparagraph (l), of this Annex. He shall participate, without the right to vote, in the meetings of the Board and may participate, without the right to vote, in the meetings of the Assembly and the Council when these organs are dealing with matters concerning the Enterprise. 3. The paramount consideration in the recruitment and employment of the staff and in the determination of their conditions of service shall be the necessity of securing the highest standards of efficiency and of technical competence. Subject to this consideration, due regard shall be paid to the importance of recruiting the staff on an equitable geographical basis. 4. In the performance of their duties the Director-General and the staff shall not seek or receive instructions from any government or from any other source external to the Enterprise. They shall refrain from any action which might reflect on their position as international officials of the Enterprise responsible only to the Enterprise. Each State Party undertakes to respect the exclusively international character of the responsibilities of the Director-General and the staff and not to seek to influence them in the discharge of their responsibilities. 5.
The responsibilities set forth in article 168, paragraph 2, are equally applicable to the staff of the Enterprise. Article 8 Location
The Enterprise shall have its principal office at the seat of the Authority. The Enterprise may establish other offices and facilities in the territory of any State Party with the consent of that State Party. Article 9 Reports and financial statements 1. The Enterprise shall, not later than three months after the end of each financial year, submit to the Council for its consideration an annual report containing an audited statement of its accounts and shall transmit to the Council at appropriate intervals a summary statement of its financial position and a profit and loss statement showing the results of its operations. 2.
The Enterprise shall publish its annual report and such other reports as it finds appropriate.
3. All reports and financial statements referred to in this article shall be distributed to the members of the Authority. Article 10 Allocation of net income 1. Subject to paragraph 3, the Enterprise shall make payments to the Authority under Annex III, article 13, or their equivalent. 2. The Assembly shall, upon the recommendation of the Governing Board, determine what portion of the net income of the Enterprise shall be retained as reserves of the Enterprise. The remainder shall be transferred to the Authority.
(Draft) First Edition, 2011 ( Annex III - 163 )
Notes in Constitutional Law I (Atty. Berne Guerrero) 3. During an initial period required for the Enterprise to become self-supporting, which shall not exceed 10 years from the commencement of commercial production by it, the Assembly shall exempt the Enterprise from the payments referred to in paragraph 1, and shall leave all of the net income of the Enterprise in its reserves. Article 11 Finances 1.
The funds of the Enterprise shall include: (a)
amounts received from the Authority in accordance with article 173, paragraph 2(b);
(b)
voluntary contributions made by States Parties for the purpose of financing activities of the Enterprise;
(c)
amounts borrowed by the Enterprise in accordance with paragraphs 2 and 3;
(d)
income of the Enterprise from its operations;
(e) other funds made available to the Enterprise to enable it to commence operations as soon as possible and to carry out its functions. 2.
(a) The Enterprise shall have the power to borrow funds and to furnish such collateral or other security as it may determine. Before making a public sale of its obligations in the financial markets or currency of a State Party, the Enterprise shall obtain the approval of that State Party. The total amount of borrowings shall be approved by the Council upon the recommendation of the Governing Board. (b) States Parties shall make every reasonable effort to support applications by the Enterprise for loans on capital markets and from international financial institutions.
3.
(a) The Enterprise shall be provided with the funds necessary to explore and exploit one mine site, and to transport, process and market the minerals recovered therefrom and the nickel, copper, cobalt and manganese obtained, and to meet its initial administrative expenses. The amount of the said funds, and the criteria and factors for its adjustment, shall be included by the Preparatory Commission in the draft rules, regulations and procedures of the Authority. (b) All States Parties shall make available to the Enterprise an amount equivalent to one half of the funds referred to in subparagraph (a) by way of long-term interest-free loans in accordance with the scale of assessments for the United Nations regular budget in force at the time when the assessments are made, adjusted to take into account the States which are not members of the United Nations. Debts incurred by the Enterprise in raising the other half of the funds shall be guaranteed by all States Parties in accordance with the same scale. (c) If the sum of the financial contributions of States Parties is less than the funds to be provided to the Enterprise under subparagraph (a), the Assembly shall, at its first session, consider the extent of the shortfall and adopt by consensus measures for dealing with this shortfall, taking into account the obligation of States Parties under subparagraphs (a) and (b) and any recommendations of the Preparatory Commission. (d)
(i) Each State Party shall, within 60 days after the entry into force of this Convention, or within 30 days after the deposit of its instrument of ratification or accession, whichever is later, deposit with the Enterprise irrevocable, non-negotiable, non-interest-bearing promissory notes in the amount of the share of such State Party of interest-free loans pursuant to subparagraph (b). (ii) The Board shall prepare, at the earliest practicable date after this Convention enters into force, and thereafter at annual or other appropriate intervals, a schedule of the magnitude and timing of its requirements for the funding of its administrative expenses and for activities carried out by the Enterprise in accordance with article 170 and article 12 of this Annex. (iii)
The States Parties shall, thereupon, be notified by the Enterprise, through the Authority, of (Draft) First Edition, 2011 ( Annex III - 164 )
Notes in Constitutional Law I (Atty. Berne Guerrero) their respective shares of the funds in accordance with subparagraph (b), required for such expenses. The Enterprise shall encash such amounts of the promissory notes as may be required to meet the expenditure referred to in the schedule with respect to interest-free loans. (iv) States Parties shall, upon receipt of the notification, make available their respective shares of debt guarantees for the Enterprise in accordance with subparagraph (b). (e)
(i) If the Enterprise so requests, State Parties may provide debt guarantees in addition to those provided in accordance with the scale referred to in subparagraph (b). (ii) In lieu of debt guarantees, a State Party may make a voluntary contribution to the Enterprise in an amount equivalent to that portion of the debts which it would otherwise be liable to guarantee.
(f) Repayment of the interest-bearing loans shall have priority over the repayment of the interest-free loans. Repayment of interest-free loans shall be in accordance with a schedule adopted by the Assembly, upon the recommendation of the Council and the advice of the Board. In the exercise of this function the Board shall be guided by the relevant provisions of the rules, regulations and procedures of the Authority, which shall take into account the paramount importance of ensuring the effective functioning of the Enterprise and, in particular, ensuring its financial independence. (g) Funds made available to the Enterprise shall be in freely usable currencies or currencies which are freely available and effectively usable in the major foreign exchange markets. These currencies shall be defined in the rules, regulations and procedures of the Authority in accordance with prevailing international monetary practice. Except as provided in paragraph 2, no State Party shall maintain or impose restrictions on the holding, use or exchange by the Enterprise of these funds. (h) "Debt guarantee" means a promise of a State Party to creditors of the Enterprise to pay, pro rata in accordance with the appropriate scale, the financial obligations of the Enterprise covered by the guarantee following notice by the creditors to the State Party of a default by the Enterprise. Procedures for the payment of those obligations shall be in conformity with the rules, regulations and procedures of the Authority. 4. The funds, assets and expenses of the Enterprise shall be kept separate from those of the Authority. This article shall not prevent the Enterprise from making arrangements with the Authority regarding facilities, personnel and services and arrangements for reimbursement of administrative expenses paid by either on behalf of the other. 5. The records, books and accounts of the Enterprise, including its annual financial statements, shall be audited annually by an independent auditor appointed by the Council. Article 12 Operations 1. The Enterprise shall propose to the Council projects for carrying out activities in accordance with article 170. Such proposals shall include a formal written plan of work for activities in the Area in accordance with article 153, paragraph 3, and all such other information and data as may be required from time to time for its appraisal by the Legal and Technical Commission and approval by the Council. 2. Upon approval by the Council, the Enterprise shall execute the project on the basis of the formal written plan of work referred to in paragraph 1. 3.
(a) If the Enterprise does not possess the goods and services required for its operations it may procure them. For that purpose, it shall issue invitations to tender and award contracts to bidders offering the best combination of quality, price and delivery time. (b) If there is more than one bid offering such a combination, the contract shall be awarded in accordance with: (i) the principle of non-discrimination on the basis of political or other considerations not relevant to (Draft) First Edition, 2011 ( Annex III - 165 )
Notes in Constitutional Law I (Atty. Berne Guerrero) the carrying out of operations with due diligence and efficiency; and (ii) guidelines approved by the Council with regard to the preferences to be accorded to goods and services originating in developing States, including the land-locked and geographically disadvantaged among them. (c) The Governing Board may adopt rules determining the special circumstances in which the requirement of invitations to bid may, in the best interests of the Enterprise, be dispensed with. 4.
The Enterprise shall have title to all minerals and processed substances produced by it.
5.
The Enterprise shall sell its products on a non-discriminatory basis. It shall not give non-commercial discounts.
6. Without prejudice to any general or special power conferred on the Enterprise under any other provision of this Convention, the Enterprise shall exercise such powers incidental to its business as shall be necessary. 7. The Enterprise shall not interfere in the political affairs of any State Party; nor shall it be influenced in its decisions by the political character of the State Party concerned. Only commercial considerations shall be relevant to its decisions, and these considerations shall be weighed impartially in order to carry out the purposes specified in article 1 of this Annex. Article 13 Legal status, privileges and immunities 1. To enable the Enterprise to exercise its functions, the status, privileges and immunities set forth in this article shall be accorded to the Enterprise in the territories of States Parties. To give effect to this principle the Enterprise and States Parties may, where necessary, enter into special agreements. 2. The Enterprise shall have such legal capacity as is necessary for the exercise of its functions and the fulfilment of its purposes and, in particular, the capacity: (a) to enter into contracts, joint arrangements or other arrangements, including agreements with States and international organizations;
3.
(b)
to acquire, lease, hold and dispose of immovable and movable property;
(c)
to be a party to legal proceedings.
(a) Actions may be brought against the Enterprise only in a court of competent jurisdiction in the territory of a State Party in which the Enterprise: (i) has an office or facility; (ii) has appointed an agent for the purpose of accepting service or notice of process; (iii) has entered into a contract for goods or services; (iv) has issued securities; or (v) is otherwise engaged in commercial activity. (b) The property and assets of the Enterprise, wherever located and by whomsoever held, shall be immune from all forms of seizure, attachment or execution before the delivery of final judgment against the Enterprise.
4.
(a) The property and assets of the Enterprise, wherever located and by whomsoever held, shall be immune from requisition, confiscation, expropriation or any other form of seizure by executive or legislative action. (Draft) First Edition, 2011 ( Annex III - 166 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
(b) The property and assets of the Enterprise, wherever located and by whomsoever held, shall be free from discriminatory restrictions, regulations, controls and moratoria of any nature. (c) The Enterprise and its employees shall respect local laws and regulations in any State or territory in which the Enterprise or its employees may do business or otherwise act. (d) States Parties shall ensure that the Enterprise enjoys all rights, privileges and immunities accorded by them to entities conducting commercial activities in their territories. These rights, privileges and immunities shall be accorded to the Enterprise on no less favourable a basis than that on which they are accorded to entities engaged in similar commercial activities. If special privileges are provided by States Parties for developing States or their commercial entities, the Enterprise shall enjoy those privileges on a similarly preferential basis. (e) States Parties may provide special incentives, rights, privileges and immunities to the Enterprise without the obligation to provide such incentives, rights, privileges and immunities to other commercial entities. 5. The Enterprise shall negotiate with the host countries in which its offices and facilities are located for exemption from direct and indirect taxation. 6. Each State Party shall take such action as is necessary for giving effect in terms of its own law to the principles set forth in this Annex and shall inform the Enterprise of the specific action which it has taken. 7. The Enterprise may waive any of the privileges and immunities conferred under this article or in the special agreements referred to in paragraph 1 to such extent and upon such conditions as it may determine. ANNEX V. CONCILIATION SECTION 1. CONCILIATION PROCEDURE PURSUANT TO SECTION 1 OF PART XV Article 1 Institution of proceedings If the parties to a dispute have agreed, in accordance with article 284, to submit it to conciliation under this section, any such party may institute the proceedings by written notification addressed to the other party or parties to the dispute. Article 2 List of conciliators A list of conciliators shall be drawn up and maintained by the Secretary-General of the United Nations. Every State Party shall be entitled to nominate four conciliators, each of whom shall be a person enjoying the highest reputation for fairness, competence and integrity. The names of the persons so nominated shall constitute the list. If at any time the conciliators nominated by a State Party in the list so constituted shall be fewer than four, that State Party shall be entitled to make further nominations as necessary. The name of a conciliator shall remain on the list until withdrawn by the State Party which made the nomination, provided that such conciliator shall continue to serve on any conciliation commission to which that conciliator has been appointed until the completion of the proceedings before that commission. Article 3 Constitution of conciliation commission The conciliation commission shall, unless the parties otherwise agree, be constituted as follows: (a)
Subject to subparagraph (g), the conciliation commission shall consist of five members.
(b)
The party instituting the proceedings shall appoint two conciliators to be chosen preferably from the list referred (Draft) First Edition, 2011 ( Annex III - 167 )
Notes in Constitutional Law I (Atty. Berne Guerrero) to in article 2 of this Annex, one of whom may be its national, unless the parties otherwise agree. Such appointments shall be included in the notification referred to in article 1 of this Annex. (c) The other party to the dispute shall appoint two conciliators in the manner set forth in subparagraph (b) within 21 days of receipt of the notification referred to in article 1 of this Annex. If the appointments are not made within that period, the party instituting the proceedings may, within one week of the expiration of that period, either terminate the proceedings by notification addressed to the other party or request the Secretary-General of the United Nations to make the appointments in accordance with subparagraph (e). (d) Within 30 days after all four conciliators have been appointed, they shall appoint a fifth conciliator chosen from the list referred to in article 2 of this Annex, who shall be chairman. If the appointment is not made within that period, either party may, within one week of the expiration of that period, request the Secretary-General of the United Nations to make the appointment in accordance with subparagraph (e). (e) Within 30 days of the receipt of a request under subparagraph (c) or (d), the Secretary-General of the United Nations shall make the necessary appointments from the list referred to in article 2 of this Annex in consultation with the parties to the dispute. (f)
Any vacancy shall be filled in the manner prescribed for the initial appointment.
(g) Two or more parties which determine by agreement that they are in the same interest shall appoint two conciliators jointly. Where two or more parties have separate interests or there is a disagreement as to whether they are of the same interest, they shall appoint conciliators separately. (h) In disputes involving more than two parties having separate interests, or where there is disagreement as to whether they are of the same interest, the parties shall apply subparagraphs (a) to (f) in so far as possible. Article 4 Procedure The conciliation commission shall, unless the parties otherwise agree, determine its own procedure. The commission may, with the consent of the parties to the dispute, invite any State Party to submit to it its views orally or in writing. Decisions of the commission regarding procedural matters, the report and recommendations shall be made by a majority vote of its members. Article 5 Amicable settlement The commission may draw the attention of the parties to any measures which might facilitate an amicable settlement of the dispute. Article 6 Functions of the commission The commission shall hear the parties, examine their claims and objections, and make proposals to the parties with a view to reaching an amicable settlement. Article 7 Report 1. The commission shall report within 12 months of its constitution. Its report shall record any agreements reached and, failing agreement, its conclusions on all questions of fact or law relevant to the matter in dispute and such recommendations as the commission may deem appropriate for an amicable settlement. The report shall be deposited with the Secretary-General of the United Nations and shall immediately be transmitted by him to the parties to the dispute.
(Draft) First Edition, 2011 ( Annex III - 168 )
Notes in Constitutional Law I (Atty. Berne Guerrero) 2. The report of the commission, including its conclusions or recommendations, shall not be binding upon the parties. Article 8 Termination The conciliation proceedings are terminated when a settlement has been reached, when the parties have accepted or one party has rejected the recommendations of the report by written notification addressed to the Secretary-General of the United Nations, or when a period of three months has expired from the date of transmission of the report to the parties. Article 9 Fees and expenses The fees and expenses of the commission shall be borne by the parties to the dispute. Article 10 Right of parties to modify procedure The parties to the dispute may by agreement applicable solely to that dispute modify any provision of this Annex. SECTION 2. COMPULSORY SUBMISSION TO CONCILIATION PROCEDURE PURSUANT TO SECTION 3 OF PART XV Article 11 Institution of proceedings 1. Any party to a dispute which, in accordance with Part XV, section 3, may be submitted to conciliation under this section, may institute the proceedings by written notification addressed to the other party or parties to the dispute. 2.
Any party to the dispute, notified under paragraph 1, shall be obliged to submit to such proceedings. Article 12 Failure to reply or to submit to conciliation
The failure of a party or parties to the dispute to reply to notification of institution of proceedings or to submit to such proceedings shall not constitute a bar to the proceedings. Article 13 Competence A disagreement as to whether a conciliation commission acting under this section has competence shall be decided by the commission. Article 14 Application of section 1 Articles 2 to 10 of section l of this Annex apply subject to this section.
ANNEX VI. STATUTE OF THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA Article 1 General provisions (Draft) First Edition, 2011 ( Annex III - 169 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
1. The International Tribunal for the Law of the Sea is constituted and shall function in accordance with the provisions of this Convention and this Statute. 2. The seat of the Tribunal shall be in the Free and Hanseatic City of Hamburg in the Federal Republic of Germany. 3.
The Tribunal may sit and exercise its functions elsewhere whenever it considers this desirable.
4.
A reference of a dispute to the Tribunal shall be governed by the provisions of Parts XI and XV. SECTION 1. ORGANIZATION OF THE TRIBUNAL Article 2 Composition
1. The Tribunal shall be composed of a body of 21 independent members, elected from among persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea. 2. In the Tribunal as a whole the representation of the principal legal systems of the world and equitable geographical distribution shall be assured. Article 3 Membership 1. No two members of the Tribunal may be nationals of the same State. A person who for the purposes of membership in the Tribunal could be regarded as a national of more than one State shall be deemed to be a national of the one in which he ordinarily exercises civil and political rights. 2. There shall be no fewer than three members from each geographical group as established by the General Assembly of the United Nations. Article 4 Nominations and elections 1. Each State Party may nominate not more than two persons having the qualifications prescribed in article 2 of this Annex. The members of the Tribunal shall be elected from the list of persons thus nominated. 2. At least three months before the date of the election, the Secretary-General of the United Nations in the case of the first election and the Registrar of the Tribunal in the case of subsequent elections shall address a written invitation to the States Parties to submit their nominations for members of the Tribunal within two months. He shall prepare a list in alphabetical order of all the persons thus nominated, with an indication of the States Parties which have nominated them, and shall submit it to the States Parties before the seventh day of the last month before the date of each election. 3.
The first election shall be held within six months of the date of entry into force of this Convention.
4. The members of the Tribunal shall be elected by secret ballot. Elections shall be held at a meeting of the States Parties convened by the Secretary-General of the United Nations in the case of the first election and by a procedure agreed to by the States Parties in the case of subsequent elections. Two thirds of the States Parties shall constitute a quorum at that meeting. The persons elected to the Tribunal shall be those nominees who obtain the largest number of votes and a two-thirds majority of the States Parties present and voting, provided that such majority includes a majority of the States Parties. Article 5 Term of office (Draft) First Edition, 2011 ( Annex III - 170 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
1. The members of the Tribunal shall be elected for nine years and may be re-elected; provided, however, that of the members elected at the first election, the terms of seven members shall expire at the end of three years and the terms of seven more members shall expire at the end of six years. 2. The members of the Tribunal whose terms are to expire at the end of the above-mentioned initial periods of three and six years shall be chosen by lot to be drawn by the Secretary-General of the United Nations immediately after the first election. 3. The members of the Tribunal shall continue to discharge their duties until their places have been filled. Though replaced, they shall finish any proceedings which they may have begun before the date of their replacement. 4. In the case of the resignation of a member of the Tribunal, the letter of resignation shall be addressed to the President of the Tribunal. The place becomes vacant on the receipt of that letter. Article 6 Vacancies 1. Vacancies shall be filled by the same method as that laid down for the first election, subject to the following provision: the Registrar shall, within one month of the occurrence of the vacancy, proceed to issue the invitations provided for in article 4 of this Annex, and the date of the election shall be fixed by the President of the Tribunal after consultation with the States Parties. 2. A member of the Tribunal elected to replace a member whose term of office has not expired shall hold office for the remainder of his predecessor's term. Article 7 Incompatible activities 1. No member of the Tribunal may exercise any political or administrative function, or associate actively with or be financially interested in any of the operations of any enterprise concerned with the exploration for or exploitation of the resources of the sea or the seabed or other commercial use of the sea or the seabed. 2.
No member of the Tribunal may act as agent, counsel or advocate in any case.
3. Any doubt on these points shall be resolved by decision of the majority of the other members of the Tribunal present. Article 8 Conditions relating to participation of members in a particular case 1. No member of the Tribunal may participate in the decision of any case in which he has previously taken part as agent, counsel or advocate for one of the parties, or as a member of a national or international court or tribunal, or in any other capacity. 2. If, for some special reason, a member of the Tribunal considers that he should not take part in the decision of a particular case, he shall so inform the President of the Tribunal. 3. If the President considers that for some special reason one of the members of the Tribunal should not sit in a particular case, he shall give him notice accordingly. 4. Any doubt on these points shall be resolved by decision of the majority of the other members of the Tribunal present. Article 9 Consequence of ceasing to fulfil required conditions (Draft) First Edition, 2011 ( Annex III - 171 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
If, in the unanimous opinion of the other members of the Tribunal, a member has ceased to fulfil the required conditions, the President of the Tribunal shall declare the seat vacant. Article 10 Privileges and immunities The members of the Tribunal, when engaged on the business of the Tribunal, shall enjoy diplomatic privileges and immunities. Article 11 Solemn declaration by members Every member of the Tribunal shall, before taking up his duties, make a solemn declaration in open session that he will exercise his powers impartially and conscientiously. Article 12 President, Vice-President and Registrar 1.
The Tribunal shall elect its President and Vice-President for three years; they may be re-elected.
2. The Tribunal shall appoint its Registrar and may provide for the appointment of such other officers as may be necessary. 3.
The President and the Registrar shall reside at the seat of the Tribunal. Article 13 Quorum
1. All available members of the Tribunal shall sit; a quorum of 11 elected members shall be required to constitute the Tribunal. 2. Subject to article 17 of this Annex, the Tribunal shall determine which members are available to constitute the Tribunal for the consideration of a particular dispute, having regard to the effective functioning of the chambers as provided for in articles 14 and 15 of this Annex. 3. All disputes and applications submitted to the Tribunal shall be heard and determined by the Tribunal, unless article 14 of this Annex applies, or the parties request that it shall be dealt with in accordance with article 15 of this Annex. Article 14 Seabed Disputes Chamber A Seabed Disputes Chamber shall be established in accordance with the provisions of section 4 of this Annex. Its jurisdiction, powers and functions shall be as provided for in Part XI, section 5. Article 15 Special chambers 1. The Tribunal may form such chambers, composed of three or more of its elected members, as it considers necessary for dealing with particular categories of disputes. 2. The Tribunal shall form a chamber for dealing with a particular dispute submitted to it if the parties so request. The composition of such a chamber shall be determined by the Tribunal with the approval of the parties. 3.
With a view to the speedy dispatch of business, the Tribunal shall form annually a chamber composed of five of (Draft) First Edition, 2011 ( Annex III - 172 )
Notes in Constitutional Law I (Atty. Berne Guerrero) its elected members which may hear and determine disputes by summary procedure. Two alternative members shall be selected for the purpose of replacing members who are unable to participate in a particular proceeding. 4.
Disputes shall be heard and determined by the chambers provided for in this article if the parties so request.
5. A judgment given by any of the chambers provided for in this article and in article 14 of this Annex shall be considered as rendered by the Tribunal. Article 16 Rules of the Tribunal The Tribunal shall frame rules for carrying out its functions. In particular it shall lay down rules of procedure. Article 17 Nationality of members 1. Members of the Tribunal of the nationality of any of the parties to a dispute shall retain their right to participate as members of the Tribunal. 2. If the Tribunal, when hearing a dispute, includes upon the bench a member of the nationality of one of the parties, any other party may choose a person to participate as a member of the Tribunal. 3. If the Tribunal, when hearing a dispute, does not include upon the bench a member of the nationality of the parties, each of those parties may choose a person to participate as a member of the Tribunal. 4. This article applies to the chambers referred to in articles 14 and 15 of this Annex. In such cases, the President, in consultation with the parties, shall request specified members of the Tribunal forming the chamber, as many as necessary, to give place to the members of the Tribunal of the nationality of the parties concerned, and, failing such, or if they are unable to be present, to the members specially chosen by the parties. 5. Should there be several parties in the same interest, they shall, for the purpose of the preceding provisions, be considered as one party only. Any doubt on this point shall be settled by the decision of the Tribunal. 6. Members chosen in accordance with paragraphs 2, 3 and 4 shall fulfil the conditions required by articles 2, 8 and 11 of this Annex. They shall participate in the decision on terms of complete equality with their colleagues. Article 18 Remuneration of members 1. Each elected member of the Tribunal shall receive an annual allowance and, for each day on which he exercises his functions, a special allowance, provided that in any year the total sum payable to any member as special allowance shall not exceed the amount of the annual allowance. 2.
The President shall receive a special annual allowance.
3.
The Vice-President shall receive a special allowance for each day on which he acts as President.
4. The members chosen under article 17 of this Annex, other than elected members of the Tribunal, shall receive compensation for each day on which they exercise their functions. 5. The salaries, allowances and compensation shall be determined from time to time at meetings of the States Parties, taking into account the workload of the Tribunal. They may not be decreased during the term of office. 6.
The salary of the Registrar shall be determined at meetings of the States Parties, on the proposal of the Tribunal.
7.
Regulations adopted at meetings of the States Parties shall determine the conditions under which retirement (Draft) First Edition, 2011 ( Annex III - 173 )
Notes in Constitutional Law I (Atty. Berne Guerrero) pensions may be given to members of the Tribunal and to the Registrar, and the conditions under which members of the Tribunal and Registrar shall have their travelling expenses refunded. 8.
The salaries, allowances, and compensation shall be free of all taxation. Article 19 Expenses of the Tribunal
1. The expenses of the Tribunal shall be borne by the States Parties and by the Authority on such terms and in such a manner as shall be decided at meetings of the States Parties. 2. When an entity other than a State Party or the Authority is a party to a case submitted to it, the Tribunal shall fix the amount which that party is to contribute towards the expenses of the Tribunal. SECTION 2. COMPETENCE Article 20 Access to the Tribunal 1.
The Tribunal shall be open to States Parties.
2. The Tribunal shall be open to entities other than States Parties in any case expressly provided for in Part XI or in any case submitted pursuant to any other agreement conferring jurisdiction on the Tribunal which is accepted by all the parties to that case. Article 21 Jurisdiction The jurisdiction of the Tribunal comprises all disputes and all applications submitted to it in accordance with this Convention and all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal. Article 22 Reference of disputes subject to other agreements If all the parties to a treaty or convention already in force and concerning the subject-matter covered by this Convention so agree, any disputes concerning the interpretation or application of such treaty or convention may, in accordance with such agreement, be submitted to the Tribunal. Article 23 Applicable law The Tribunal shall decide all disputes and applications in accordance with article 293. SECTION 3. PROCEDURE Article 24 Institution of proceedings 1. Disputes are submitted to the Tribunal, as the case may be, either by notification of a special agreement or by written application, addressed to the Registrar. In either case, the subject of the dispute and the parties shall be indicated. 2.
The Registrar shall forthwith notify the special agreement or the application to all concerned.
3.
The Registrar shall also notify all States Parties. (Draft) First Edition, 2011 ( Annex III - 174 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
Article 25 Provisional measures 1. In accordance with article 290, the Tribunal and its Seabed Disputes Chamber shall have the power to prescribe provisional measures. 2. If the Tribunal is not in session or a sufficient number of members is not available to constitute a quorum, the provisional measures shall be prescribed by the chamber of summary procedure formed under article 15, paragraph 3, of this Annex. Notwithstanding article 15, paragraph 4, of this Annex, such provisional measures may be adopted at the request of any party to the dispute. They shall be subject to review and revision by the Tribunal. Article 26 Hearing 1. The hearing shall be under the control of the President or, if he is unable to preside, of the Vice-President. If neither is able to preside, the senior judge present of the Tribunal shall preside. 2. The hearing shall be public, unless the Tribunal decides otherwise or unless the parties demand that the public be not admitted. Article 27 Conduct of case The Tribunal shall make orders for the conduct of the case, decide the form and time in which each party must conclude its arguments, and make all arrangements connected with the taking of evidence. Article 28 Default When one of the parties does not appear before the Tribunal or fails to defend its case, the other party may request the Tribunal to continue the proceedings and make its decision. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its decision, the Tribunal must satisfy itself not only that it has jurisdiction over the dispute, but also that the claim is well founded in fact and law. Article 29 Majority for decision 1.
All questions shall be decided by a majority of the members of the Tribunal who are present.
2. In the event of an equality of votes, the President or the member of the Tribunal who acts in his place shall have a casting vote. Article 30 Judgment 1.
The judgment shall state the reasons on which it is based.
2.
It shall contain the names of the members of the Tribunal who have taken part in the decision.
3. If the judgment does not represent in whole or in part the unanimous opinion of the members of the Tribunal, any member shall be entitled to deliver a separate opinion. 4. The judgment shall be signed by the President and by the Registrar. It shall be read in open court, due notice having been given to the parties to the dispute.
(Draft) First Edition, 2011 ( Annex III - 175 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Article 3l Request to intervene 1. Should a State Party consider that it has an interest of a legal nature which may be affected by the decision in any dispute, it may submit a request to the Tribunal to be permitted to intervene. 2.
It shall be for the Tribunal to decide upon this request.
3. If a request to intervene is granted, the decision of the Tribunal in respect of the dispute shall be binding upon the intervening State Party in so far as it relates to matters in respect of which that State Party intervened. Article 32 Right to intervene in cases of interpretation or application 1. Whenever the interpretation or application of this Convention is in question, the Registrar shall notify all States Parties forthwith. 2. Whenever pursuant to article 21 or 22 of this Annex the interpretation or application of an international agreement is in question, the Registrar shall notify all the parties to the agreement. 3. Every party referred to in paragraphs 1 and 2 has the right to intervene in the proceedings; if it uses this right, the interpretation given by the judgment will be equally binding upon it. Article 33 F inality and binding force of decisions 1.
The decision of the Tribunal is final and shall be complied with by all the parties to the dispute.
2.
The decision shall have no binding force except between the parties in respect of that particular dispute.
3. In the event of dispute as to the meaning or scope of the decision, the Tribunal shall construe it upon the request of any party. Article 34 Costs Unless otherwise decided by the Tribunal, each party shall bear its own costs. SECTION 4. SEABED DISPUTES CHAMBER Article 35 Composition 1. The Seabed Disputes Chamber referred to in article 14 of this Annex shall be composed of 11 members, selected by a majority of the elected members of the Tribunal from among them. 2. In the selection of the members of the Chamber, the representation of the principal legal systems of the world and equitable geographical distribution shall be assured. The Assembly of the Authority may adopt recommendations of a general nature relating to such representation and distribution. 3.
The members of the Chamber shall be selected every three years and may be selected for a second term.
4. The Chamber shall elect its President from among its members, who shall serve for the term for which the Chamber has been selected.
(Draft) First Edition, 2011 ( Annex III - 176 )
Notes in Constitutional Law I (Atty. Berne Guerrero) 5. If any proceedings are still pending at the end of any three-year period for which the Chamber has been selected, the Chamber shall complete the proceedings in its original composition. 6. If a vacancy occurs in the Chamber, the Tribunal shall select a successor from among its elected members, who shall hold office for the remainder of his predecessor's term. 7.
A quorum of seven of the members selected by the Tribunal shall be required to constitute the Chamber. Article 36 Ad hoc chambers
1. The Seabed Disputes Chamber shall form an ad hoc chamber, composed of three of its members, for dealing with a particular dispute submitted to it in accordance with article 188, paragraph 1(b). The composition of such a chamber shall be determined by the Seabed Disputes Chamber with the approval of the parties. 2. If the parties do not agree on the composition of an ad hoc chamber, each party to the dispute shall appoint one member, and the third member shall be appointed by them in agreement. If they disagree, or if any party fails to make an appointment, the President of the Seabed Disputes Chamber shall promptly make the appointment or appointments from among its members, after consultation with the parties. 3.
Members of the ad hoc chamber must not be in the service of, or nationals of, any of the parties to the dispute. Article 37 Access
The Chamber shall be open to the States Parties, the Authority and the other entities referred to in Part XI, section 5. Article 38 Applicable law In addition to the provisions of article 293, the Chamber shall apply: (a)
the rules, regulations and procedures of the Authority adopted in accordance with this Convention; and
(b)
the terms of contracts concerning activities in the Area in matters relating to those contracts. Article 39 Enforcement of decisions of the Chamber
The decisions of the Chamber shall be enforceable in the territories of the States Parties in the same manner as judgments or orders of the highest court of the State Party in whose territory the enforcement is sought. Article 40 Applicability of other sections of this Annex 1.
The other sections of this Annex which are not incompatible with this section apply to the Chamber.
2. In the exercise of its functions relating to advisory opinions, the Chamber shall be guided by the provisions of this Annex relating to procedure before the Tribunal to the extent to which it recognizes them to be applicable. SECTION 5. AMENDMENTS Article 4l Amendments
(Draft) First Edition, 2011 ( Annex III - 177 )
Notes in Constitutional Law I (Atty. Berne Guerrero) 1. Amendments to this Annex, other than amendments to section 4, may be adopted only in accordance with article 313 or by consensus at a conference convened in accordance with this Convention. 2.
Amendments to section 4 may be adopted only in accordance with article 314.
3. The Tribunal may propose such amendments to this Statute as it may consider necessary, by written communications to the States Parties for their consideration in conformity with paragraphs 1 and 2.
ANNEX VII. ARBITRATION Article 1 Institution of proceedings Subject to the provisions of Part XV, any party to a dispute may submit the dispute to the arbitral procedure provided for in this Annex by written notification addressed to the other party or parties to the dispute. The notification shall be accompanied by a statement of the claim and the grounds on which it is based. Article 2 List of arbitrators l. A list of arbitrators shall be drawn up and maintained by the Secretary-General of the United Nations. Every State Party shall be entitled to nominate four arbitrators, each of whom shall be a person experienced in maritime affairs and enjoying the highest reputation for fairness, competence and integrity. The names of the persons so nominated shall constitute the list. 2. If at any time the arbitrators nominated by a State Party in the list so constituted shall be fewer than four, that State Party shall be entitled to make further nominations as necessary. 3. The name of an arbitrator shall remain on the list until withdrawn by the State Party which made the nomination, provided that such arbitrator shall continue to serve on any arbitral tribunal to which that arbitrator has been appointed until the completion of the proceedings before that arbitral tribunal. Article 3 Constitution of arbitral tribunal For the purpose of proceedings under this Annex, the arbitral tribunal shall, unless the parties otherwise agree, be constituted as follows: (a)
Subject to subparagraph (g), the arbitral tribunal shall consist of five members.
(b) The party instituting the proceedings shall appoint one member to be chosen preferably from the list referred to in article 2 of this Annex, who may be its national. The appointment shall be included in the notification referred to in article l of this Annex. (c) The other party to the dispute shall, within 30 days of receipt of the notification referred to in article l of this Annex, appoint one member to be chosen preferably from the list, who may be its national. If the appointment is not made within that period, the party instituting the proceedings may, within two weeks of the expiration of that period, request that the appointment be made in accordance with subparagraph (e). (d) The other three members shall be appointed by agreement between the parties. They shall be chosen preferably from the list and shall be nationals of third States unless the parties otherwise agree. The parties to the dispute shall appoint the President of the arbitral tribunal from among those three members. If, within 60 days of receipt of the notification referred to in article l of this Annex, the parties are unable to reach agreement on the appointment of one or more of the members of the tribunal to be appointed by agreement, or on the appointment of the President, the remaining (Draft) First Edition, 2011 ( Annex III - 178 )
Notes in Constitutional Law I (Atty. Berne Guerrero) appointment or appointments shall be made in accordance with subparagraph (e), at the request of a party to the dispute. Such request shall be made within two weeks of the expiration of the aforementioned 60-day period. (e) Unless the parties agree that any appointment under subparagraphs (c) and (d) be made by a person or a third State chosen by the parties, the President of the International Tribunal for the Law of the Sea shall make the necessary appointments. If the President is unable to act under this subparagraph or is a national of one of the parties to the dispute, the appointment shall be made by the next senior member of the International Tribunal for the Law of the Sea who is available and is not a national of one of the parties. The appointments referred to in this subparagraph shall be made from the list referred to in article 2 of this Annex within a period of 30 days of the receipt of the request and in consultation with the parties. The members so appointed shall be of different nationalities and may not be in the service of, ordinarily resident in the territory of, or nationals of, any of the parties to the dispute. (f)
Any vacancy shall be filled in the manner prescribed for the initial appointment.
(g) Parties in the same interest shall appoint one member of the tribunal jointly by agreement. Where there are several parties having separate interests or where there is disagreement as to whether they are of the same interest, each of them shall appoint one member of the tribunal. The number of members of the tribunal appointed separately by the parties shall always be smaller by one than the number of members of the tribunal to be appointed jointly by the parties. (h) In disputes involving more than two parties, the provisions of subparagraphs (a) to (f) shall apply to the maximum extent possible. Article 4 Functions of arbitral tribunal An arbitral tribunal constituted under article 3 of this Annex shall function in accordance with this Annex and the other provisions of this Convention. Article 5 Procedure Unless the parties to the dispute otherwise agree, the arbitral tribunal shall determine its own procedure, assuring to each party a full opportunity to be heard and to present its case. Article 6 Duties of parties to a dispute The parties to the dispute shall facilitate the work of the arbitral tribunal and, in particular, in accordance with their law and using all means at their disposal, shall: (a)
provide it with all relevant documents, facilities and information; and
(b) enable it when necessary to call witnesses or experts and receive their evidence and to visit the localities to which the case relates. Article 7 Expenses Unless the arbitral tribunal decides otherwise because of the particular circumstances of the case, the expenses of the tribunal, including the remuneration of its members, shall be borne by the parties to the dispute in equal shares. Article 8 Required majority for decisions Decisions of the arbitral tribunal shall be taken by a majority vote of its members. The absence or abstention of less than half of the members shall not constitute a bar to the tribunal reaching a decision. In the event of an equality of votes, the (Draft) First Edition, 2011 ( Annex III - 179 )
Notes in Constitutional Law I (Atty. Berne Guerrero) President shall have a casting vote. Article 9 Default of appearance If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law. Article 10 Award The award of the arbitral tribunal shall be confined to the subject-matter of the dispute and state the reasons on which it is based. It shall contain the names of the members who have participated and the date of the award. Any member of the tribunal may attach a separate or dissenting opinion to the award. Article 11 Finality of award The award shall be final and without appeal, unless the parties to the dispute have agreed in advance to an appellate procedure. It shall be complied with by the parties to the dispute. Article 12 Interpretation or implementation of award 1. Any controversy which may arise between the parties to the dispute as regards the interpretation or manner of implementation of the award may be submitted by either party for decision to the arbitral tribunal which made the award. For this purpose, any vacancy in the tribunal shall be filled in the manner provided for in the original appointments of the members of the tribunal. 2. Any such controversy may be submitted to another court or tribunal under article 287 by agreement of all the parties to the dispute. Article 13 Application to entities other than States Parties The provisions of this Annex shall apply mutatis mutandis to any dispute involving entities other than States Parties.
ANNEX VIII. SPECIAL ARBITRATION Article 1 Institution of proceedings Subject to Part XV, any party to a dispute concerning the interpretation or application of the articles of this Convention relating to (1) fisheries, (2) protection and preservation of the marine environment, (3) marine scientific research, or (4) navigation, including pollution from vessels and by dumping, may submit the dispute to the special arbitral procedure provided for in this Annex by written notification addressed to the other party or parties to the dispute. The notification shall be accompanied by a statement of the claim and the grounds on which it is based. Article 2 Lists of experts 1.
A list of experts shall be established and maintained in respect of each of the fields of (1) fisheries, (2) (Draft) First Edition, 2011 ( Annex III - 180 )
Notes in Constitutional Law I (Atty. Berne Guerrero) protection and preservation of the marine environment, (3) marine scientific research, and (4) navigation, including pollution from vessels and by dumping. 2. The lists of experts shall be drawn up and maintained, in the field of fisheries by the Food and Agriculture Organization of the United Nations, in the field of protection and preservation of the marine environment by the United Nations Environment Programme, in the field of marine scientific research by the Intergovernmental Oceanographic Commission, in the field of navigation, including pollution from vessels and by dumping, by the International Maritime Organization, or in each case by the appropriate subsidiary body concerned to which such organization, programme or commission has delegated this function. 3. Every State Party shall be entitled to nominate two experts in each field whose competence in the legal, scientific or technical aspects of such field is established and generally recognized and who enjoy the highest reputation for fairness and integrity. The names of the persons so nominated in each field shall constitute the appropriate list. 4. If at any time the experts nominated by a State Party in the list so constituted shall be fewer than two, that State Party shall be entitled to make further nominations as necessary. 5. The name of an expert shall remain on the list until withdrawn by the State Party which made the nomination, provided that such expert shall continue to serve on any special arbitral tribunal to which that expert has been appointed until the completion of the proceedings before that special arbitral tribunal. Article 3 Constitution of special arbitral tribunal For the purpose of proceedings under this Annex, the special arbitral tribunal shall, unless the parties otherwise agree, be constituted as follows: (a)
Subject to subparagraph (g), the special arbitral tribunal shall consist of five members.
(b) The party instituting the proceedings shall appoint two members to be chosen preferably from the appropriate list or lists referred to in article 2 of this Annex relating to the matters in dispute, one of whom may be its national. The appointments shall be included in the notification referred to in article 1 of this Annex. (c) The other party to the dispute shall, within 30 days of receipt of the notification referred to in article 1 of this Annex, appoint two members to be chosen preferably from the appropriate list or lists relating to the matters in dispute, one of whom may be its national. If the appointments are not made within that period, the party instituting the proceedings may, within two weeks of the expiration of that period, request that the appointments be made in accordance with subparagraph (e). (d) The parties to the dispute shall by agreement appoint the President of the special arbitral tribunal, chosen preferably from the appropriate list, who shall be a national of a third State, unless the parties otherwise agree. If, within 30 days of receipt of the notification referred to in article l of this Annex, the parties are unable to reach agreement on the appointment of the President, the appointment shall be made in accordance with subparagraph (e), at the request of a party to the dispute. Such request shall be made within two weeks of the expiration of the aforementioned 30-day period. (e) Unless the parties agree that the appointment be made by a person or a third State chosen by the parties, the Secretary-General of the United Nations shall make the necessary appointments within 30 days of receipt of a request under subparagraphs (c) and (d). The appointments referred to in this subparagraph shall be made from the appropriate list or lists of experts referred to in article 2 of this Annex and in consultation with the parties to the dispute and the appropriate international organization. The members so appointed shall be of different nationalities and may not be in the service of, ordinarily resident in the territory of, or nationals of, any of the parties to the dispute. (f)
Any vacancy shall be filled in the manner prescribed for the initial appointment.
(g) Parties in the same interest shall appoint two members of the tribunal jointly by agreement. Where there are several parties having separate interests or where there is disagreement as to whether they are of the same interest, each (Draft) First Edition, 2011 ( Annex III - 181 )
Notes in Constitutional Law I (Atty. Berne Guerrero) of them shall appoint one member of the tribunal. (h) In disputes involving more than two parties, the provisions of subparagraphs (a) to (f) shall apply to the maximum extent possible. Article 4 General provisions Annex VII, articles 4 to 13, apply mutatis mutandis to the special arbitration proceedings in accordance with this Annex. Article 5 Fact finding 1. The parties to a dispute concerning the interpretation or application of the provisions of this Convention relating to (l) fisheries, (2) protection and preservation of the marine environment, (3) marine scientific research, or (4) navigation, including pollution from vessels and by dumping, may at any time agree to request a special arbitral tribunal constituted in accordance with article 3 of this Annex to carry out an inquiry and establish the facts giving rise to the dispute. 2. Unless the parties otherwise agree, the findings of fact of the special arbitral tribunal acting in accordance with paragraph 1, shall be considered as conclusive as between the parties. 3. If all the parties to the dispute so request, the special arbitral tribunal may formulate recommendations which, without having the force of a decision, shall only constitute the basis for a review by the parties of the questions giving rise to the dispute. 4. Subject to paragraph 2, the special arbitral tribunal shall act in accordance with the provisions of this Annex, unless the parties otherwise agree.
ANNEX IX. PARTICIPATION BY INTERNATIONAL ORGANIZATIONS Article 1 Use of terms For the purposes of article 305 and of this Annex, "international organization" means an intergovernmental organization constituted by States to which its member States have transferred competence over matters governed by this Convention, including the competence to enter into treaties in respect of those matters. Article 2 Signature An international organization may sign this Convention if a majority of its member States are signatories of this Convention. At the time of signature an international organization shall make a declaration specifying the matters governed by this Convention in respect of which competence has been transferred to that organization by its member States which are signatories, and the nature and extent of that competence. Article 3 Formal confirmation and accession 1. An international organization may deposit its instrument of formal confirmation or of accession if a majority of its member States deposit or have deposited their instruments of ratification or accession. 2. The instruments deposited by the international organization shall contain the undertakings and declarations required by articles 4 and 5 of this Annex. (Draft) First Edition, 2011 ( Annex III - 182 )
Notes in Constitutional Law I (Atty. Berne Guerrero)
Article 4 Extent of participation and rights and obligations l. The instrument of formal confirmation or of accession of an international organization shall contain an undertaking to accept the rights and obligations of States under this Convention in respect of matters relating to which competence has been transferred to it by its member States which are Parties to this Convention. 2. An international organization shall be a Party to this Convention to the extent that it has competence in accordance with the declarations, communications of information or notifications referred to in article 5 of this Annex. 3. Such an international organization shall exercise the rights and perform the obligations which its member States which are Parties would otherwise have under this Convention, on matters relating to which competence has been transferred to it by those member States. The member States of that international organization shall not exercise competence which they have transferred to it. 4. Participation of such an international organization shall in no case entail an increase of the representation to which its member States which are States Parties would otherwise be entitled, including rights in decision-making. 5. Participation of such an international organization shall in no case confer any rights under this Convention on member States of the organization which are not States Parties to this Convention. 6. In the event of a conflict between the obligations of an international organization under this Convention and its obligations under the agreement establishing the organization or any acts relating to it, the obligations under this Convention shall prevail. Article 5 Declarations, notifications and communications l. The instrument of formal confirmation or of accession of an international organization shall contain a declaration specifying the matters governed by this Convention in respect of which competence has been transferred to the organization by its member States which are Parties to this Convention. 2. A member State of an international organization shall, at the time it ratifies or accedes to this Convention or at the time when the organization deposits its instrument of formal confirmation or of accession, whichever is later, make a declaration specifying the matters governed by this Convention in respect of which it has transferred competence to the organization. 3. States Parties which are member States of an international organization which is a Party to this Convention shall be presumed to have competence over all matters governed by this Convention in respect of which transfers of competence to the organization have not been specifically declared, notified or communicated by those States under this article. 4. The international organization and its member States which are States Parties shall promptly notify the depositary of this Convention of any changes to the distribution of competence, including new transfers of competence, specified in the declarations under paragraphs 1 and 2. 5. Any State Party may request an international organization and its member States which are States Parties to provide information as to which, as between the organization and its member States, has competence in respect of any specific question which has arisen. The organization and the member States concerned shall provide this information within a reasonable time. The international organization and the member States may also, on their own initiative, provide this information. 6. Declarations, notifications and communications of information under this article shall specify the nature and extent of the competence transferred.
(Draft) First Edition, 2011 ( Annex III - 183 )
Notes in Constitutional Law I (Atty. Berne Guerrero) Article 6 Responsibility and liability l. Parties which have competence under article 5 of this Annex shall have responsibility for failure to comply with obligations or for any other violation of this Convention. 2. Any State Party may request an international organization or its member States which are States Parties for information as to who has responsibility in respect of any specific matter. The organization and the member States concerned shall provide this information. Failure to provide this information within a reasonable time or the provision of contradictory information shall result in joint and several liability. Article 7 Settlement of disputes l. At the time of deposit of its instrument of formal confirmation or of accession, or at any time thereafter, an international organization shall be free to choose, by means of a written declaration, one or more of the means for the settlement of disputes concerning the interpretation or application of this Convention, referred to in article 287, paragraph 1(a), (c) or (d). 2. Part XV applies mutatis mutandis to any dispute between Parties to this Convention, one or more of which are international organizations. 3. When an international organization and one or more of its member States are joint parties to a dispute, or parties in the same interest, the organization shall be deemed to have accepted the same procedures for the settlement of disputes as the member States; when, however, a member State has chosen only the International Court of Justice under article 287, the organization and the member State concerned shall be deemed to have accepted arbitration in accordance with Annex VII, unless the parties to the dispute otherwise agree. Article 8 Applicability of Part XVII Part XVII applies mutatis mutandis to an international organization, except in respect of the following: (a) the instrument of formal confirmation or of accession of an international organization shall not be taken into account in the application of article 308, paragraph l; (b)
(i) an international organization shall have exclusive capacity with respect to the application of articles 312 to 315, to the extent that it has competence under article 5 of this Annex over the entire subject-matter of the amendment; (ii) the instrument of formal confirmation or of accession of an international organization to an amendment, the entire subject-matter over which the international organization has competence under article 5 of this Annex, shall be considered to be the instrument of ratification or accession of each of the member States which are States Parties, for the purposes of applying article 316, paragraphs 1, 2 and 3; (iii) the instrument of formal confirmation or of accession of the international organization shall not be taken into account in the application of article 316, paragraphs 1 and 2, with regard to all other amendments;
(c) (i) an international organization may not denounce this Convention in accordance with article 317 if any of its member States is a State Party and if it continues to fulfil the qualifications specified in article 1 of this Annex; (ii) an international organization shall denounce this Convention when none of its member States is a State Party or if the international organization no longer fulfils the qualifications specified in (Draft) First Edition, 2011 ( Annex III - 184 )
Notes in Constitutional Law I (Atty. Berne Guerrero) article 1 of this Annex. Such denunciation shall take effect immediately.
(Draft) First Edition, 2011 ( Annex III - 185 )
